Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Steven L. Berman, Juvenile Court Referee.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
DOI TODD, J.
Rachel R. (mother) appeals from the juvenile court’s order terminating parental rights. (Welf. & Inst. Code, § 366.26.) She contends that because she was a minor at the inception of the proceedings, the juvenile court erred in not appointing a guardian ad litem (GAL) for her at that time. While failure to appoint a GAL was error, we find the error was harmless and affirm.
All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Mother was 15 when she gave birth to her son D.R. in May 2005. Before his birth, mother had been diagnosed with oppositional-defiant disorder, learning disorder, conduct disorder and mood disorder. D.R. came to the attention of the Los Angeles County Department of Children and Family Services (the department) immediately following his birth. Mother had recently been released from juvenile hall and was on probation for burglary and prostitution, and had a history of going “AWOL” from her probation placements. She did not feel that she could care for D.R., and later stated that she thought placing her son “in the system” was the best option for him. D.R. was placed in foster care and mother agreed to a voluntary case plan with the department. From late May 2005 through early September 2005, mother resided in a placement but did not comply with her voluntary case plan. On September 19, 2005, she was placed at St. Anne’s Maternity Home. She went AWOL five days later, returned to St. Anne’s after she was located, but went AWOL again on October 31, 2005.
On November 18, 2005, the department filed a dependency petition on D.R.’s behalf, alleging in count b-1 that mother “has been diagnosed with conduct disorder, and as a minor lacks the coping and parenting abilities to manage a young child independently.” The petition further alleged in count b-3 that mother had failed to comply with her voluntary case plan and in count g-1 that mother’s whereabouts were unknown and that she had failed to make a plan for D.R.’s ongoing care. The department’s attorney informed the court at the detention hearing that mother was a minor.
For the next hearing on January 20, 2006, the department reported that mother had been arrested and returned to juvenile hall and probation camp, and that she had visited D.R. once in October 2005. Mother appeared at the hearing and was appointed an attorney, who requested a case plan “specifically tailored to [mother’s] needs.” The court continued the matter so that mother could undergo an examination conducted by an expert appointed pursuant to Evidence Code section 730. The court granted the request of mother’s attorney that she be allowed visitation with D.R.
At the next hearing on March 9, 2006, mother appeared with her attorney, who requested a trial, and the matter was continued. Mother and her attorney appeared at the following hearing on April 6, 2006, during which mother’s attorney requested that the adjudication/disposition hearing again be continued because mother had not yet undergone a comprehensive psychological examination. Her attorney argued that such an examination was necessary “so we can really come up with a good plan so we can help [mother]. . . . [T]he heart of the petition goes to what’s really going on, and I think I’ll do my client a disservice, and everybody else, if we simply try to adjudicate something that we really need to get some information on so we can help the mother long term.” The court continued the matter.
Mother underwent the Evidence Code section 730 evaluation on May 5, 2006. She was diagnosed with conduct disorder, parent-child relational problems and learning disorder. The report noted that mother had trouble following the rules at her probation camp and displayed unruly and disrespectful behavior, which led to an additional 30 days of incarceration.
The adjudication and disposition hearing was conducted on May 18, 2006. Mother was present and her attorney requested that the matter be treated as a trial and to dismiss counts b-3 and g-l, which the court agreed to do, sustaining the allegations in count b-1, as amended by the parties. The court ordered D.R. to remain in foster care and ordered mother to participate in parent education and individual counseling.
In July 2006, the department reported that mother was having monitored visits with D.R. twice a month and that her behavior at probation camp was improving. At the hearing on July 12, 2006, mother appeared with her attorney, who informed the court that mother was in compliance with her parenting class and individual counseling. The court agreed that mother was in compliance. Mother’s attorney also represented that mother soon would be released from her probation camp and requested that the department be ordered to start looking for a home for teen mothers. The court granted the request.
Mother was released from probation camp on August 25, 2006 to the home of her maternal grandmother, but went AWOL from September through November 2006, during which time she did not visit D.R. Mother was then located and re-placed at St. Anne’s Maternity Home, but went AWOL again on December 15, 2006. Mother did not appear at the next two hearings on January 10 and February 1, 2007, and her whereabouts were unknown. At the February 1 hearing, mother’s attorney requested that she be appointed a GAL based on the recent case of In re D.D. ([November 2,] 2006) 144 Cal.App.4th 646, and the court granted the request. The court then continued the matter one day to February 2, 2007. Mother did not appear at the February 2 hearing, at which her attorney argued that a GAL should have been appointed for mother at the inception of the case and objected to the department’s recommendation that reunification services be terminated. The court disagreed, terminated reunification services and set the matter for a section 366.26 permanent placement hearing on June 1, 2007. Copies of an advisement of writ rights and a writ petition form were served on mother at St. Anne’s, her attorney and her GAL.
At the June 1, 2007 section 366.26 hearing, mother’s whereabouts were still unknown and she had not had any visits with D.R. The matter was continued. On June 4, 2007, mother was placed in probation camp and appeared at the continued section 366.26 hearing on August 3, 2007. Mother informed the court that she had turned 18 and had matured. The court then appointed her GAL as her attorney and relieved him of his GAL duties. D.R.’s foster mother informed the court that mother had not visited him since September 2006. On October 12, 2007, D.R. was removed from his foster parents due to allegations of domestic abuse and placed with another foster family.
The contested section 366.26 hearing was conducted on February 6, 2008. In preparation for the hearing, the department reported that mother and D.R. were having monitored visits twice a month at her probation camp. D.R. was doing well with his new foster family, who was committed to adopting him. Mother testified at the hearing that she had a “mother and son relationship” with D.R. even though she did not see him everyday. Mother admitted that she did not see D.R. for about nine months the prior year. The court found by clear and convincing evidence that D.R. was adoptable and terminated parental rights, finding no applicable exceptions. This appeal followed.
DISCUSSION
Code of Civil Procedure section 372, subdivision (a) provides in relevant part: “When a minor, an incompetent person, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case.” Because a minor is “considered legally incapable of providing adequate direction to counsel,” the failure to appoint a GAL for mother at the inception of the proceedings was clearly error, as the department concedes. (In re M.F. (2008) 161 Cal.App.4th 673, 680; In re D.D., supra, 144 Cal.App.4th at pp. 653–654 [juvenile court required to appoint GAL for a minor as a matter of law, even when minor fails to appear in court].) Nevertheless, the department argues that mother has waived the issue on this appeal by failing to file a petition for extraordinary writ following the court’s termination of reunification services and setting the matter for a section 366.26 hearing.
Other courts that have considered the issue have concluded that the waiver rule does not apply where the juvenile court fails to appoint a GAL. In In re M.F., supra, 161 Cal.App.4th 673, the court reasoned: “The failure to appoint a guardian ad litem in an appropriate case goes to the very ability of the parent to meaningfully participate in the proceedings. For the same reasons that C.F. needed a guardian ad litem, she was ‘hardly in a position to recognize . . . and independently protest’ the failure to appoint her one.” (Id. at p. 682.) While the court in In re A.C. (2008) 166 Cal.App.4th 146 questioned M.F.’s assertion that the failure to appoint a GAL in an appropriate case goes to the very ability of the parent to meaningfully participate in the proceedings, it did agree with M.F.’s conclusion that a person entitled to a GAL under Code of Civil Procedure section 372 is hardly in a position to recognize the error and to protest the failure to appoint one. “To enforce the waiver rule in this particular situation would be fundamentally unfair.” (In re A.C., supra, at p. 156.) We agree and likewise conclude that mother has not waived her right to raise the issue on appeal.
The department argues that the failure to appoint a GAL for mother at the inception of the proceedings was harmless error. For the first time in her reply brief, mother argues that the juvenile court’s failure to appoint a GAL at the inception of the proceedings constituted structural error, requiring reversal per se of the order terminating parental rights. We give no credence to arguments made for the first time in a reply brief. (Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 351.) Moreover, we agree with the department that the juvenile court’s failure to appoint a GAL under Code of Civil Procedure section 372 is subject to a harmless error standard. (See In re M.F., supra, 161 Cal.App.4th at p. 680 [“we review the record to determine whether C.F. was prejudiced by the failure to appoint a guardian ad litem”]; In re A.C., supra, 166 Cal.App.4th at pp. 158–159 [no reversible error where there is no finding of substantial prejudice].)
Mother relies on In re D.D., supra, 144 Cal.App.4th at page 654, for the proposition that the failure to appoint a GAL at the inception of the proceedings is “fundamentally unfair.” As the D.D. court subsequently noted in In re A.C., it was not the failure to appoint the GAL by itself that rendered the proceedings fundamentally unfair in the D.D. case; rather, it was the combination of the failure to appoint a GAL, the failure to appoint an attorney, and the complete lack of adequate notice to the minor father that warranted the conclusion that the proceedings were fundamentally unfair. (In re A.C., supra, 166 Cal.App.4th at p.158.) These were not the circumstances in A.C., nor were they here. Rather, mother was represented throughout the proceedings by an attorney, and there is no argument that she did not receive proper notice.
Mother also relies on In re M.F., supra, 161 Cal.App.4th 673, in which the court concluded that, based on the entire record, the failure to appoint a GAL for the minor parent until after the termination of reunification services resulted in a miscarriage of justice. But the facts in M.F. differ from those here. For example, the M.F. court noted that a GAL could have made the arguments that there was no basis for original jurisdiction where there were no allegations of wrongful conduct by the minor parent, that the infant should have been placed with the minor parent, that visits were not properly taking place, that the time limits for reunification were not applicable where the infant had been returned to the parent at the dispositional hearing and that because the basis for the supplemental jurisdiction was unrelated to the original grounds for jurisdiction, additional services should have been provided. (Id. at p. 681.) The M.F. court further noted that the minor parent’s attorney appeared without a client at important hearings and offered no evidence or argument. (Ibid.) Mother draws on this last factor and asserts, without any citation to the record, that her attorney often appeared in court without a client and offered no evidence or argument at the hearings. But we have reviewed the entire record, which indicates that mother appeared at the majority of the hearings. And, as the above factual rendition makes clear, mother’s attorney frequently made arguments on her behalf, even in her absence, including that a GAL should have been appointed for her at the outset of the proceedings, and objected to the termination of reunification services. Mother makes no further argument attempting to show that she was prejudiced by the juvenile court’s failure to timely appoint a GAL.
The department argues, and we agree, that on the record before us the juvenile court’s failure to appoint a GAL at the inception of the proceedings, instead of one day prior to the termination of reunification services, was harmless in that the outcome would not have been different. At the time D.R. was born, mother suffered a conduct disorder, and lacked the parenting and coping skills to care for a newborn baby. At that time it was mother’s belief that placing D.R. “in the system” was the best option for him. Mother therefore agreed to a voluntary case plan, but she failed to comply with the plan and went AWOL from her probation placement. At the time the dependency petition was filed in November 2005, mother’s whereabouts were still unknown. Thereafter, mother again went AWOL from her probation placements from September through November 2006 and from December 2006 to June 2007. During these unaccounted for absences, mother failed to visit D.R. and to participate at all in her court-ordered case plan. At the time mother’s reunification services were terminated on February 2, 2007, her whereabouts were still unknown and she had not had any consistent visits with D.R. since the prior summer. Mother was also represented by counsel in all proceedings before the court, who made arguments on her behalf. Under these circumstances, the juvenile court properly terminated mother’s reunification services. We are satisfied that the appointment of a GAL at the outset of the proceedings would not have changed the outcome of this case.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.