Opinion
A146812
08-22-2017
In re S.M., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. S.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. OJ15025578-01)
After a jurisdiction/disposition hearing in dependency proceedings involving S.M. (a boy born in December 2008), the juvenile court sustained the dependency petition, declared S.M. a dependent, ordered that he be removed from the custody of his mother, S.M. (Mother), and ordered that reunification services be provided to Mother. Mother appeals the disposition order, contending the court (1) should have appointed a guardian ad litem for her, and (2) should have continued the jurisdiction/disposition hearing to address whether to appoint a guardian ad litem. We affirm.
I. BACKGROUND
A. The Dependency Petition and the Detention of S.M.
On September 18, 2015, respondent Alameda County Social Services Agency (the Agency) filed a dependency petition on behalf of S.M. pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petition and a detention report filed on September 21, 2015 state that S.M. was taken into protective custody by Officer Aguilar of the Oakland Police Department on September 16, 2015. The officer responded to a report that Mother was " 'beating' " S.M. at a market. Witnesses stated Mother hit and kicked S.M. Paramedics found S.M. had no injuries other than a scraped knee. Mother told the officer she was yelling at S.M. for getting his jacket wet, but she denied hitting or kicking him. Officer Aguilar attempted to take a statement from Mother, but she appeared to be " 'under the influence.' " She changed her story repeatedly, was a " 'roller coaster of emotions,' " and spoke incoherently. Mother had a marijuana " 'blunt' " in her possession. Officer Aguilar determined Mother was unable to care for S.M. due to her mental and emotional state.
All undesignated statutory references are to the Welfare and Institutions Code.
S.M. was placed in foster care. In the dependency petition filed two days after the above incident, the Agency alleged Mother had failed or was unable to supervise or protect S.M. adequately (§ 300, subd. (b)). In addition to noting the officer's observations about Mother's behavior and his determination that she was unable to care for S.M., the petition alleged Mother had "no stable place of abode" for S.M., and had been "unable to meet [his] hygiene needs as a law enforcement officer reported him to be 'layered with dirt' on his body and wearing unwashed outer and under garments." The petition also stated that Mother "admits to a history of 'depression' and is prescribed Zoloft, Abilify and Seroquel. However, [Mother] did not have the medication in her possession and could not articulate how she takes her medication. [Mother]'s mental health and misuse of medication interferes with her care of the minor." The petition stated S.M.'s alleged father, H.M., had been arrested for child endangerment on September 6, 2015, and was incarcerated with no known date of release; he thus was unable to care for S.M. (§ 300, subds. (b), (g)).
H.M. has not appealed the court's disposition order.
In its detention report, the Agency recommended that S.M. be detained. The social worker had spoken to Mother, who denied hitting S.M. Mother provided inconsistent answers about her prospects for housing and agreed her housing situation had not been stable for a while. Mother denied substance abuse but said she smokes about " 'two blunts' " of marijuana per week. Mother, who was 22 years old at the time S.M. was detained, stated she was diagnosed with depression when she was 17 years old. Mother told the social worker she takes Zoloft, Abilify and Seroquel. Mother initially said she had not taken medication since she was 17, but later said she was still taking medication. When speaking to a different child welfare worker, Mother gave inconsistent answers about where she and S.M. lived, and about where she kept her medication (i.e., stating she kept it at a friend's house, but not providing the friend's name or address, or stating when she took the medication). Mother stated she was unemployed and receiving disability income. Mother has two younger children, who reside with their father (who is not the father of S.M.).
At the detention hearing on September 21, 2015, the court appointed counsel for S.M., for Mother, and for the alleged father, H.M. The minute order for the hearing reflects that the court conducted a voir dire examination of Mother as to paternity, but deferred ruling on paternity issues. The court found the Agency had made a prima facie showing that S.M. was described by section 300. After finding removal of S.M. from Mother's custody was necessary, the court ordered him detained and set an uncontested jurisdiction/disposition hearing for October 5, 2015. The court ordered the Agency to arrange for supervised visitation between S.M. and Mother
No reporter's transcript of the detention hearing is included in the appellate record.
B. The Jurisdiction/Disposition Reports
In its report for the October 5 hearing, the Agency stated Mother did not have stable housing for S.M. and had a history of mental health issues. The Agency also stated Mother's substance abuse could be affecting her ability to care for S.M. The Agency noted several prior child welfare referrals involving Mother's children, including some that led to investigations. An investigation in January 2011 (when Mother was 17 years old, and S.M. was two years old) involved a substantiated allegation that Mother had scratched or cut S.M. on his stomach with scissors. The report states that, on that occasion, Mother "appeared to be exhibiting psychotic symptoms as she was reported to have stated that 'animals and babies need to be sacrifice[d].' " Mother was arrested. She was diagnosed with "Extreme Post Partum Depression with Psychosis" and was prescribed Zoloft and Seroquel.
According to the October 5 report, Mother stated H.M. is S.M.'s father, although another man is listed on S.M.'s birth certificate. Mother stated S.M. was primarily in the care of H.M. from the time he was one year old until H.M. was incarcerated in early September 2015. A child welfare worker spoke to S.M., who stated that, on September 16, 2015, Mother yelled at him but did not hit or kick him.
The Agency recommended that S.M. be placed out of Mother's home and be made a dependent of the court. The Agency recommended that reunification services be provided to Mother. At the October 5 hearing, the court set a contested hearing for October 29, 2015.
In an addendum report for the October 29 hearing, the Agency stated the social worker had experienced difficulty communicating with and engaging Mother, who had been inconsistent with visitation. Mother had attended only one visit with S.M. despite having been offered several more. Mother also had missed three drug tests. The Agency stated Mother had been referred to a provider for medication support and mental health services, but the social worker had not been able to provide this information to Mother so she could start those services.
The social worker visited H.M. at Santa Rita Jail. H.M. stated he had been the primary caregiver for S.M. since he was a baby, but there was no formal custody order, and Mother would visit S.M. During most of S.M.'s life, H.M. handled S.M.'s needs, such as school and medical appointments. H.M. stated Mother had no substance abuse issues but did have mental health issues. H.M. stated that, when he surrendered himself in early September 2015, the plan was for S.M. to remain in the care of H.M.'s fiancée and S.M.'s paternal aunt, but Mother later came and picked up S.M., saying she was going to care for him while H.M. was incarcerated.
C. The October 29 Hearing
At the beginning of the October 29 hearing, the court asked Mother's counsel whether there would be a contested hearing. Mother then asked the court to "explain the trial." The court stated its understanding was that Mother wanted to object to the Agency's recommendations, but the court noted that those recommendations included provision of reunification services to Mother. Mother's attorney stated that Mother did not object to the services but rather to the allegations. Counsel stated she had explained Mother's "right to a trial," and Mother had said she wanted to hear from the court about her "right to a trial."
The court explained the trial was a contested hearing, where Mother would take the witness stand or put other witnesses on the stand, the attorneys would ask the witnesses questions, and the court would then make a decision. Mother stated she was "[s]till confused" and "not understanding." The court explained the testimony would pertain to "[w]hatever it is you're contesting." Mother stated she wanted S.M. to come home. The court stated S.M. could not go home unless Mother participated in reunification services. Mother stated she was still confused, and the court responded, "Well, you're going to be confused then. I don't know how else to explain it to you. [¶] Reunification services will help you get your child back, because it will explain to you different things that you have to go through." Mother responded, "Okay."
When the court began speaking again, Mother stated, "I'd like to say all of this is not true." The deputy admonished Mother not to interrupt the court, and Mother stated, "Oh, I'm listening. Go ahead." The court stated, "Whatever it is that brought you into this system, that's what you have to work on," and Mother responded, "Okay." The court told Mother that if she wanted to have a contested hearing, she would need to speak with her attorney. Mother stated she wanted to "tell the truth and everything that happened," so S.M. could come home with her. She added, "I have nothing to hide. So I'm ready." Mother's counsel then confirmed to the court that there would be a contested hearing. Mother asked what the difference was "between that and a trial," and her attorney responded that a contested hearing is "the same thing" as a trial.
After this colloquy, the court proceeded with a paternity voir dire of H.M., the alleged father. The court declined to elevate H.M. to presumed father status at the hearing and ordered that he first take a DNA test.
Turning to the jurisdiction/disposition contest, the court admitted into evidence the Agency's detention and jurisdiction/disposition reports. Social worker Mira Salas then testified. Salas testified that, in September 2015, the police initially took S.M. into custody based on an allegation of physical abuse. The Agency concluded S.M. likely had not been physically abused, but the Agency had concerns about Mother's mental health, possible substance abuse, and lack of housing for herself and S.M. In light of these issues, Salas believed S.M. was not safe in Mother's custody. During the short period when S.M. was in Mother's care, he did not attend school. Mother had participated in only four of 10 scheduled visits with S.M., and only one of six since the previous hearing.
As to Mother's mental health, Salas testified she had reviewed records indicating Mother was diagnosed with extreme postpartum depression with psychosis in 2011. Asked by Mother's counsel whether Mother still had postpartum depression in 2015, Salas testified she did not know. Salas testified Officer Aguilar had stated Mother seemed incoherent at the time of S.M.'s detention. Salas testified she had spoken with Mother, who stated she had a history of depression and had been prescribed medication, but provided inconsistent information about whether and when she took it. Mother told Salas she smoked about two marijuana "blunts" per week. Mother was "disorganized in her speech" and easily irritated.
During Salas's testimony, the court ended the session and continued the hearing to November 9, 2015.
D. The November 9 Hearing
At the November 9 hearing, Salas continued her testimony, stating Mother had only made it to one of the two planned visits with S.M. since the last hearing. During the visit, Mother was often nonresponsive to S.M.'s questions and requests to play games with him; this was atypical for her, as she ordinarily is more engaged. Mother appeared "emotionally distraught" during the visit, and alternated between being very happy and very sad. Salas stated that, based on her observations during the visit, Mother continued to present with mental health problems. As to housing, Mother had not given Salas a "straight answer as to where she lives."
Mother then testified. When questioned by her own attorney, Mother testified she did not have a place to live but would get one "[p]robably in Hayward, maybe" within the next month. Asked about the removal of S.M. from her care by police, she stated she had not been under the influence of drugs and had not changed her story when speaking with the police, but she had been emotional because the police were taking S.M. from her. Mother stated that S.M. had not been dirty when he was detained, because she bathed him and washed his clothes. She stated that, at that time, she was staying with her grandmother, but she appeared to have difficulty recounting the exact name and identity of the person with whom she had been staying, and the court stated, "It's not connecting, Ms. [M.]."
As to medication, Mother testified she took Zoloft, Abilify and Seroquel, and had shown the prescriptions to her attorney at the last court date, but she had not shown them to the social worker or brought them to the current hearing, because she had not thought to do so. She testified she takes the medication daily and keeps it in a bag at a friend's house; she then said she keeps the bag at her grandmother's house.
Mother testified she had missed two scheduled visits with S.M. because her sister had a baby, and Mother had gone to Sacramento to visit them. When Mother's attorney asked her when she had gone to visit her sister, Mother stated, "We're not speaking upon her right now. We're speaking upon this." The court responded, "I make the orders around here, not you." After additional discussion, the court directed Mother to answer the question about her sister's baby, and Mother stated, "I do not remember when she had God's baby." Shortly thereafter, the court admonished Mother that "you're going to be in trouble in about five more minutes," and told her to "stop being smart." When her attorney again started to ask about the visit to her sister, Mother stated, "Now, do not talk about my sister and her baby." The court told her to "quiet down." Mother then left the witness stand. The court stated, "You're losing your opportunity to be heard. Bye." Mother left the courtroom.
The court stated it would proceed with the hearing, and asked Mother's counsel to call her remaining witness, H.M., the alleged father. H.M.'s counsel asked the court to hold a hearing on whether to appoint a guardian ad litem for Mother, stating, "I'm super uncomfortable without the mom here and without the GAL [i.e., guardian ad litem] hearing." The court denied the request, stating there could not be a guardian ad litem hearing without Mother present. Mother's counsel then made the same request for a guardian ad litem hearing, and the court again denied the request.
S.M.'s maternal grandmother and his paternal aunt left the courtroom to look for Mother but could not find her.
H.M. testified that, prior to his incarceration, he was S.M.'s primary caregiver. If he needed assistance, he would contact Mother or her parents. Mother sometimes would take custody of S.M. When S.M. visited Mother, they stayed with the grandparents or other relatives. H.M. testified that Mother sometimes becomes "ill," and he elaborated that she sometimes is "mentally distraught" or "agitated," or "in a depressed mode of being sad." When she is in "that state of being," her mother takes physical custody of her. H.M. did not let S.M. go with Mother when she was sick. H.M. testified that he visited Mother in a mental hospital in 2010, and that she was in a mental hospital again for a few days in 2014 after a dispute with the father of her other children. H.M. testified he turned himself in to complete a prior sentence and expected to be released in December 2015.
After H.M. finished testifying, Mother's counsel asked that the court appoint a guardian ad litem for Mother. The court responded that it could not address the question of appointing a guardian ad litem in Mother's absence. The court stated "we'd be willing to have a [guardian ad litem], but we can't do it without her here." The court expressed reluctance to extend "[S.M.'s] situation for who knows when until we find his mom and bring her in." Mother's counsel then asked the court to continue the matter so the court could hold a guardian ad litem hearing and Mother could finish her testimony. The court denied the continuance request, noting Mother was absent and her whereabouts were unknown.
After hearing argument on paternity issues, the court again declined to elevate H.M. to presumed father status until after the results of DNA testing were available. Counsel then argued the merits of the jurisdictional allegations. During her argument, S.M.'s counsel joined in Mother's counsel's objection to proceeding without a guardian ad litem for Mother. S.M.'s counsel stated, "it is concerning to me to proceed on jurisdiction at [Mother's] contest if there's a request for the [guardian ad litem]." The court stated that it was willing to appoint a guardian ad litem, and that an attorney who could serve in that capacity had appeared in the courtroom, but Mother had not returned. The court declined to delay ruling on jurisdiction and disposition while Mother was absent, stating, "the best interest of the child in this case is the Court's greatest concern, and so I'm going to rule based on that, given that [Mother] had every opportunity to be in here this morning and be heard."
The court found true the allegations in the petition under section 300, subdivisions (b) and (g). The court declared S.M. a dependent, found removal from Mother's custody was necessary, and ordered that reunification services be provided to Mother. The court set a hearing for December 17, 2015 to address the results of paternity testing and to consider appointment of a guardian ad litem for Mother if she were to appear for the hearing. The court set a six-month review hearing for April 18, 2016.
Mother filed a notice of appeal challenging the court's jurisdiction and disposition orders.
II. DISCUSSION
A. Legal Standards
"In a dependency case, a parent who is mentally incompetent must appear by a guardian ad litem appointed by the court. (Code Civ. Proc., § 372; [citation].) The test is whether the parent has the capacity to understand the nature or consequences of the proceeding and to assist counsel in preparing the case. [Citations.] The effect of the guardian ad litem's appointment is to transfer direction and control of the litigation from the parent to the guardian ad litem, who may waive the parent's right to a contested hearing." (In re James F. (2008) 42 Cal.4th 901, 910 (James F.).) "In a dependency proceeding, a juvenile court should appoint a guardian ad litem for a parent if the requirements of either Probate Code section 1801 or Penal Code section 1367 are satisfied." (James F., supra, at p. 916; accord, In re M.P. (2013) 217 Cal.App.4th 441, 453.) "When a dependency court has knowledge of a party's minor status or incompetence under [Code of Civil Procedure] section 372, the dependency court has an obligation to appoint a [guardian ad litem] sua sponte." (In re A.C. (2008) 166 Cal.App.4th 146, 155; see Code Civ. Proc., § 373, subd. (c) [court may appoint guardian ad litem on its own motion].)
Code of Civil Procedure section 372 now provides for appointment of a guardian ad litem for "a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed." (Code Civ. Proc., § 372, subd. (a)(1), italics added.) The version of the statute in effect prior to 2015 provided for appointment of a guardian ad litem for "a minor, an incompetent person, or a person for whom a conservator has been appointed." (Code Civ. Proc., former § 372, subd. (a), as amended by Stats. 2008, ch. 181, § 1, italics added.) The parties do not contend this change in the language of the statute is pertinent to the issues raised on appeal.
Penal Code section 1367, subdivision (a), provides in relevant part: "A defendant is mentally incompetent . . . if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the . . . proceedings or to assist counsel in the conduct of a defense in a rational manner." Under Probate Code section 1801, a conservator may be "appointed for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter" or "who is substantially unable to manage his or her own financial resources or resist fraud or undue influence . . . ." (Prob. Code, § 1801, subds. (a) & (b).)
"Before appointing a guardian ad litem for a parent in a dependency proceeding, the juvenile court must hold an informal hearing at which the parent has an opportunity to be heard. [Citation.] The court or counsel should explain to the parent the purpose of the guardian ad litem and the grounds for believing that the parent is mentally incompetent. [Citation.] If the parent consents to the appointment, the parent's due process rights are satisfied. [Citation.] A parent who does not consent must be given an opportunity to persuade the court that appointment of a guardian ad litem is not required, and the juvenile court should make an inquiry sufficient to satisfy itself that the parent is, or is not, competent. [Citation.] If the court appoints a guardian ad litem without the parent's consent, the record must contain substantial evidence of the parent's incompetence." (James F., supra, 42 Cal.4th at pp. 910-911.)
B. Alleged Sua Sponte Obligation to Appoint a Guardian Ad Litem
In the present case, no request for appointment of a guardian ad litem was made until after Mother left the courtroom during her testimony at the November 9, 2015 jurisdiction/disposition hearing. Mother contends, however, that the juvenile court had an obligation to appoint a guardian ad litem for her, sua sponte, at the outset of the dependency proceedings. We disagree.
"[W]hen the trial court already has knowledge of [a parent's] incompetency, the trial court has an obligation to appoint a guardian ad litem sua sponte." (In re Lisa M. (1986) 177 Cal.App.3d 915, 919; see In re A.C., supra, 166 Cal.App.4th at p. 155.) When this is not the case, the need to inquire into the competence of a parent in dependency proceedings is left to the sound discretion of the juvenile court. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1366-1368.) An erroneous failure to appoint a guardian ad litem is a statutory error and is reversible only if "a different result would have been probable had the statutory error not occurred." (In re A.C., supra, 166 Cal.App.4th at pp. 154, 157-159; accord, In re Lisa M., supra, 177 Cal.App.3d at p. 920, fn. 4.)
Mother acknowledges the case law establishing that an erroneous failure to appoint a guardian ad litem is statutory error. She asserts, however, that, (1) in the circumstances of this case, the failure to appoint a guardian ad litem constitutes structural error, necessitating automatic reversal, and (2) the court's proceeding in the absence of a guardian ad litem violated her due process rights, so the alleged error is reversible unless it was harmless beyond a reasonable doubt. We are not persuaded. As the court explained in In re A.C., while it is true that the failure to follow appropriate procedures when appointing a guardian ad litem may violate due process, the erroneous failure to appoint a guardian ad litem, without more, does not. (In re A.C., supra, 166 Cal.App.4th at p. 157.) "Failure to appoint a [guardian ad litem] or order the guardian to appear in a parent's stead does not mean the parent has been denied notice and an opportunity to be heard regarding his interest in a child's companionship, care, and custody [citation]. By contrast, when a dependency court finds a parent incompetent and appoints a [guardian ad litem] without the benefit of an informal hearing and an opportunity to be heard, the effect of such an order is to transfer direction and control of the litigation from the parent to the [guardian ad litem], who may waive the parent's rights. [Citation.] Clearly, the purpose of a [guardian ad litem] appointment in a dependency case is to protect the parent's rights. [Citation.] The failure so to appoint, however, does not necessarily mean the parent's right to due process has been violated." (Ibid.)
Mother asserts the court, acting sua sponte, should have halted the proceedings and held an informal hearing to appoint a guardian ad litem, either at the detention hearing or at the jurisdiction/disposition hearing. She contends that, "[f]rom the inception of this case, there was substantial evidence of [Mother's] mental incapacity and her inability to understand the nature of the proceedings, as well as her inability to adequately assist her counsel with important decisions in the legal proceedings." The court did not abuse its discretion by failing to pursue appointment of a guardian ad litem sua sponte.
Mother thus argues primarily that she was incompetent under the standard set forth in Penal Code section 1367, i.e., she was unable to understand the proceedings or assist her counsel. In her opening brief, she does not develop an argument that she was incompetent under the alternate standard set forth in Probate Code section 1801, applicable to a person "who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter" or "who is substantially unable to manage his or her own financial resources or resist fraud or undue influence . . . ." (Prob. Code, § 1801, subds. (a) & (b).) In her reply brief, Mother asserts that, because there was evidence she did not maintain stable housing, she was incompetent under this standard as well.
We need not address this belated argument. In any event, Mother's difficulty in providing stable housing for herself and for S.M. did not establish that Mother was unable to provide for her personal needs. As the Agency notes in its appellate brief, the testimony at the jurisdiction/disposition hearing suggested Mother obtained temporary shelter by staying with family and friends.
At the detention hearing on September 21, 2015, the court had before it the dependency petition and the Agency's detention report. At the outset of the contested jurisdiction/disposition hearing on October 29, 2015, the court (a different judicial officer, who had not presided at the September 21 detention hearing or at the October 5 hearing at which the matter was set for contest on October 29) also had before it the Agency's jurisdiction/disposition report and an addendum report. As Mother notes, those documents included allegations and statements about her mental health. The petition alleged Mother had a history of depression and had been prescribed medication for that condition, but could not articulate when she took it; her mental health interfered with her ability to care for S.M.; and the police officer who removed S.M. from her care stated she was speaking incoherently, changing her story, and experiencing a " 'roller coaster' " of emotion. The detention report referred to Mother's depression diagnosis at age 17, her inconsistent statements about her medication, and her inconsistent statements about where she and S.M. lived. And the jurisdiction/disposition report also stated Mother had a history of mental health issues, including referring to a 2011 child welfare investigation in which Mother reportedly physically abused S.M. by using scissors to inflict scratches on his stomach. The report states that, on that occasion, Mother "appeared to be exhibiting psychotic symptoms as she was reported to have stated that 'animals and babies need to be sacrifice[d].' " She was incarcerated, was diagnosed with extreme postpartum depression with psychosis, was prescribed Zoloft and Seroquel, and was hospitalized twice during her incarceration.
The allegations and information in these documents do not establish the court erred by not inquiring, sua sponte, into Mother's competence. "[W]hile social studies are admissible on the question of jurisdiction, we question whether these documents, which contain multiple hearsay, are admissible to determine whether an adult is competent." (In re Sara D. (2001) 87 Cal.App.4th 661, 674, fn. omitted [reversing order appointing guardian ad litem].) Moreover, the reports only stated that Mother had psychological problems and provided inconsistent information about her situation, as well as describing one incident, occurring several years earlier, in which Mother physically abused S.M., and "was reported" to have made bizarre statements. Considering the information in these documents as a whole, it did not establish that Mother was incompetent or trigger a sua sponte obligation to initiate proceedings to appoint a guardian ad litem for her. (See ibid. [evidence that parent (1) "had psychological problems (major depression [mild recurrent], posttraumatic stress disorder with chemical dependency in remission, and borderline personality disorder)," (2) "had fragmented thoughts which made it difficult for her to stay focused," and (3) sometimes had "chaotic relationships with both children and adults," did not support a conclusion that she "did not understand the nature of the proceedings or was unable to assist counsel in protecting her interests"]; In re Ronell A., supra, 44 Cal.App.4th at p. 1367 [father's chronic mental illness and substance abuse did not require sua sponte appointment of guardian ad litem, where father understood nature of proceedings and was able to assist his counsel]; In re R.S. (1985) 167 Cal.App.3d 946, 979-980.)
The record does not include reporter's transcripts of the September 21 detention hearing or the October 5 hearing, so there is no basis for concluding any of Mother's statements or conduct at those hearings triggered a sua sponte obligation to appoint a guardian ad litem.
Mother next contends her colloquy with the court and counsel at the outset of the October 29 contested jurisdiction/disposition hearing, as well as subsequent events during the hearing, showed she was "confused" and required the court to halt the proceedings sua sponte and hold a hearing on whether to appoint a guardian ad litem. We disagree. As discussed, after Mother's counsel stated Mother wanted to hear from the court about her "right to a trial," the court explained the trial was a contested hearing, where Mother would testify or present the testimony of other witnesses, the attorneys would ask questions, and the court would make a decision. When Mother stated she wanted S.M. to come home, the court explained the importance of reunification services.
Mother's statements during this exchange, while revealing some confusion and impulsivity (i.e., occasionally speaking over the court), reflect that she, a layperson, had reasonable questions about how the contested hearing would proceed. The judge (who, as noted, had not presided at the prior hearings and may have been observing Mother for the first time) provided reasonable, responsive explanations (while occasionally displaying some impatience), and Mother appeared ultimately to understand and accept the court's explanations. She and her attorney then both announced they were ready to proceed. Notably, neither Mother's counsel nor any of the other attorneys present responded to this exchange by suggesting Mother needed to yield control of the litigation to a guardian ad litem (a suggestion they were not reluctant to make at the subsequent hearing on November 9, after Mother displayed more troubling conduct, including departing abruptly from the courtroom). The court did not abuse its discretion by failing to pursue the appointment of a guardian ad litem sua sponte.
Mother notes that, during the paternity voir dire that followed the above exchange, the court admonished her on a few occasions for interrupting or laughing while H.M. was speaking, and the court at one point stated, "The way I'm seeing it right now, nobody needs this child. Both of you guys are a hot mess." We note Mother responded to the court's admonitions by agreeing to be quiet, and we decline to hold that her minor disruptions required the court to seek appointment of a guardian ad litem sua sponte. (See In re Joann E. (2002) 104 Cal.App.4th 347, 359 [test for appointment of guardian ad litem is whether the parent understands the proceedings and can assist the attorney, "not whether the individual is difficult to handle as a participant in the process"].) Nor did the testimony of the social worker about Mother's mental health issues obligate the court to stop the proceedings to conduct a guardian ad litem hearing. Mother's counsel effectively cross-examined the social worker on this issue, and the court was not required, in the middle of the hearing (after having heard from only one of three scheduled witnesses), to conclude Mother was not competent to proceed without a guardian ad litem.
C. The Requests for a Guardian Ad Litem and for a Continuance
The first request for appointment of a guardian ad litem came after Mother had left the courtroom during the November 9 jurisdiction/disposition hearing; counsel again made the request after H.M. testified. The court correctly ruled (and Mother does not dispute) that it could not appoint a guardian ad litem, or hold a hearing on whether to appoint one, in Mother's absence. (James F., supra, 42 Cal.4th at p. 910 [before appointing guardian ad litem for a parent in a dependency proceeding, juvenile court must hold informal hearing at which the parent has an opportunity to be heard].)
On the second of these occasions (i.e., after H.M. finished testifying), Mother's counsel orally requested that the court continue the matter so the court could hold a guardian ad litem hearing and Mother could finish her testimony. On appeal, Mother contends the court prejudicially erred by denying her request for a continuance. We disagree.
Section 352, subdivision (a) provides a juvenile court may grant a continuance in a dependency case for good cause shown if the continuance is not contrary to the interests of the minor child, and specifies that when considering whether to grant a continuance the court "shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." The court's ruling on whether a request for a continuance falls within these guidelines is reviewed for abuse of discretion. (In re B.C. (2011) 192 Cal.App.4th 129, 143-144.)
To obtain a continuance of a hearing, a party generally must provide written notice at least two court days prior to the date set for the hearing, "unless the court for good cause entertains an oral motion for continuance." (§ 352, subd. (a).)
Here, the court denied the oral continuance request, noting Mother was absent and her whereabouts were unknown. It thus was unclear how long any continuance would be. The court also noted the best interest of S.M. was "the Court's greatest concern," and decided a continuance was not appropriate, given that Mother had received an opportunity to be heard. We are not persuaded that the court's decision not to delay ruling on jurisdiction and disposition was an abuse of discretion.
In any event, any error in not granting a continuance to conduct proceedings as to whether to appoint a guardian ad litem was harmless. It is not reasonably probable the court would have reached a result more favorable to Mother if the court had continued the hearing and delayed its jurisdictional and dispositional rulings. (See D.E. v. Superior Court (2003) 111 Cal.App.4th 502, 513-514 [alleged error in failing to continue hearing in dependency case was harmless]; In re A.C., supra, 166 Cal.App.4th at pp. 158-159 [error in failing to appoint guardian ad litem was harmless].)
When counsel requested a continuance, the Agency's reports had been admitted into evidence; the social worker had testified; Mother had presented some testimony before leaving the witness stand and the courtroom; and H.M. had testified. No party had designated any other witness to testify. Mother has not provided any explanation of what she, her counsel, or a guardian ad litem (if one had been appointed prior to a continued hearing) might have said or done at the continued hearing that would have changed the court's rulings. It is possible Mother would have completed her testimony at a continued hearing, but she has not identified any testimony she would have provided that would have changed the outcome of the jurisdiction/disposition hearing. As noted, based on the testimony and other evidence that was presented, the court sustained the petition and ordered the removal of S.M. from Mother's custody, but ordered the provision of reunification services to Mother. It is not reasonably likely that, if the hearing had been continued, Mother would have obtained a more favorable result.
Mother does not contend there was a lack of substantial evidence to support the court's rulings.
III. DISPOSITION
The jurisdictional and dispositional orders are affirmed.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.