Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SDP20080004
NICHOLSON, J.
P.H., mother of the minors, appeals from orders of the juvenile court appointing a guardian ad litem for her and terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395 [further undesignated statutory references are to the Welfare and Institutions Code].) Appellant contends there was insufficient evidence to support the court’s order appointing a guardian ad litem and the court failed to explain the purpose of a guardian ad litem to her. Appellant further contends the court abused its discretion in failing to grant a continuance of the selection and implementation hearing. Appellant also argues there was insufficient evidence to support the court’s finding the minors were likely to be adopted and asserts that the benefit and sibling exceptions to the preference for adoption as a permanent plan applied. We affirm.
FACTS
The Department of Human Services (Department) filed a petition in January 2008 alleging appellant neglected to provide adequate care for the three minors, Peter H., age 16; K.H., age seven; and Crystal H., age five. It was apparent from the Department’s first contacts with appellant that she had difficulty processing and acting on information and that she did not want to hear, although she understood, what was said to her. Appellant’s discourse was rambling and fixated on establishing that the minors had been enrolled in school and minimizing the problems which led to detention. It was difficult to determine whether her behavior was the result of substance abuse or mental health problems. The minors were detained.
The appeal concerns only Kettja and Crystal.
There was some confusion about whether appellant resided in California or Nevada at the time the minors were removed; however, law enforcement did confirm she resided in South Lake Tahoe, California. The minors had been disenrolled from Nevada schools twice since the beginning of the school year because they did not live in Nevada. After a contested hearing in which jurisdictional issues were fully litigated, the court sustained the petition.
Appellant participated in a psychological evaluation but the evaluator felt it was important to establish the etiology of appellant’s problems before making recommendations on whether she could benefit from services and suspended the evaluation until further information was obtained. The court adopted the recommended service plan which included a psychological evaluation, counseling, parenting classes, and a neuropsychological examination.
The minors did well in foster care, were catching up educationally and addressing problems in therapy. Visits were adequate depending upon appellant’s mood and whether she was willing to abide by visitation rules. Appellant was engaged in her service plan but did not appear to benefit from the parenting class. The neuropsychological examination disclosed no deficiencies and appellant was referred back to complete the psychological evaluation. At the review hearing, the court ordered further services for appellant.
Over the next few months, visits presented problems as the minors reacted negatively to contact with appellant who continued to try to manipulate and pressure them during visits. The court decreased the frequency of visits.
The 12-month status review report stated that the minors did not want to return home. Visits continued to be problematic even with the decrease in frequency as appellant continued to vacillate from positive to being upset when the minors did not meet her emotional needs, once becoming so emotional that a visit had to be terminated. Appellant had not completed the psychological evaluation and no recommendation for additional services could be made. Appellant had refused to sign a release for disclosure of any treatment or results of evaluation for mental health issues, and her progress in that area could not be assessed. Appellant had completed parenting class but was unable to demonstrate appropriate parenting in visits, treating the minors as younger than they were and overreacting to normal bruises and scrapes acquired by active children. The report recommended termination of services. An addendum stated that appellant continued to violate visitation guidelines and had made an attempt to complete the psychological evaluation, but had not done so. After a contested hearing, the court adopted the Department’s recommendation and terminated services.
Appellant filed a notice of intent to file a petition for extraordinary writ and, although represented by counsel, filed a petition on her own in the Court of Appeal. The petition was rejected because counsel was responsible for filing the petition. (Cal. Rules of Court, rule 8.450(c).) By the time counsel was able to contact appellant and received a copy of her petition attacking the jurisdictional basis for the dependency on residency grounds, which she insisted be filed, the petition was no longer timely and was returned to counsel. Counsel unsuccessfully sought to have the Supreme Court review the matter.
The report for the section 366.26 hearing stated that the minors were in good health and had no developmental problems but Crystal’s skill level in school was below age expected norms. Both girls were in therapy and making progress. Both girls had told the therapist they did not want to live with their mother. The therapist said she did not see any signs Crystal was likely to develop serious emotional or mental health problems and that her current problem with lack of focus and attention was likely to resolve with continued stability and predictability in her life. The report stated that, with visits reduced to once a month, appellant was interacting appropriately with the minors but that before the latest reduction appellant was often inappropriate. Both K. and Crystal were assessed as adoptable. K. indicated she wanted to be adopted. Crystal wanted to continue living with her current foster home if she could not live with appellant. The current caretakers were interested in adopting them.
At the section 366.26 hearing, appellant made an oral Marsden motion. Appellant complained about counsel’s representation regarding the lack of writ review of the order setting the section 366.26 hearing. Counsel explained the sequence of events and that, in her opinion, a writ would have been denied because there was no basis to challenge the order. Counsel stated that she understood appellant and how appellant thought, noting that appellant had mental health problems which kept her from understanding the process. Counsel further explained that when she had attempted to verify information appellant had provided, the people with whom appellant had interacted provided an entirely different version of events than appellant did.
People v. Marsden (1970) 2 Cal.3d 118.
After hearing counsel’s explanation, the court wondered if appellant needed a guardian ad litem. The court asked appellant if she knew what a guardian ad litem was and appellant responded that she did. The court then asked whether appellant wanted one and appellant said, “Yes.” The court, finding a loss of confidence, relieved counsel, appointed new counsel, and appointed a guardian ad litem. The section 366.26 hearing was continued to April 22, 2009. On that date, new counsel and the guardian ad litem appeared with appellant and the hearing was continued to May 20, 2009.
Appellant was not present on the day of the hearing although the matter, originally scheduled for morning, was not called until mid-afternoon. The guardian ad litem, who was present, had not received a copy of the section 366.26 report but had looked briefly at counsel’s copy. Appellant’s counsel told the court appellant contested the recommendation but had no evidence to present. Counsel argued there was a lack of reasonable services in that the psychological evaluation had not been completed and no recommendations made.
The guardian ad litem, admitting he did not know the case, also argued that inadequate mental health services were provided and asked the court to go slow, leave the minors in placement, but ensure all efforts had been made to offer appropriate services. Counsel for the Department observed that the question of reasonable services had been “heavily” litigated at the 12-month review hearing and was not at issue in the current hearing. The guardian ad litem informed the court that appellant had faxed some documents indicating she had undergone a medical procedure nine days earlier and the doctor wanted her to have further tests. The guardian ad litem also told the court that appellant had called him the day before and said that she was going to be at medical appointments in the afternoon and could not be in court. The guardian ad litem continued to express concerns that not everything that could have been done to reunify the family had been done. The court, having seen the progress of the case, disagreed.
Minors’ counsel questioned the late appointment of a guardian ad litem for appellant and the court responded that no one had raised the issue before the date that the section 366.26 hearing was originally set. Minors’ counsel expressed some concern that the foster parents may hesitate to adopt the youngest minor who was showing some mental health problems and the minors might end up separated. Minors’ counsel also stated the minors had told him that while they liked the foster home, they wanted to return to appellant’s care. Nonetheless, minors’ counsel supported the Department’s recommendation.
The CASA volunteer told the court the foster parents were “more than willing” to adopt both girls and were getting counseling for the youngest minor. The CASA volunteer recommended adoption.
CASA refers to the Court Appointed Special Advocate. (Cal. Rules of Court, rule 5.655.)
The court adopted a plan of foster care to transition to independent living for Peter with continued visitation with appellant. The guardian ad litem then clarified that his prior mention of the medical problem was intended to constitute a request for a continuance. The court denied the motion. The court found K. and Crystal were likely to be adopted and terminated parental rights, emphasizing the importance of the minors remaining together.
DISCUSSION
I
Appellant contends it was error to appoint a guardian ad litem on the day the section 366.26 was scheduled. She argues substantial evidence did not support the appointment and the court did not inform her of the purpose of a guardian ad litem. She further contends that if appointment of the guardian ad litem was appropriate, it was error not to appoint one earlier in the proceedings.
“In a dependency case, a parent who is mentally incompetent must appear by a guardian ad litem appointed by the court.” (In re James F. (2008) 42 Cal.4th 901, 910; In re Sara D. (2001) 87 Cal.App.4th 661, 667.) “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.” (In re James F., supra, 42 Cal.4th at p. 910; In re Sara D., supra, 87 Cal.App.4th at p. 667; In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186.) If the parent consents to the appointment, due process is served since the parent has participated in the decision. (In re Sara D., supra, 87 Cal.App.4th at p. 668.) If there is no consent, the court or counsel must explain the purpose of a guardian ad litem and the parent should be given the opportunity to respond. (Ibid.) The court should make an inquiry sufficient to satisfy it that the parent is, or is not, competent. (In re Sara D., supra, 87 Cal.App.4th at p. 672.) “[E]rror in the procedure used to appoint a guardian ad litem for a parent in a dependency proceeding is trial error that is amenable to harmless error analysis rather than a structural defect requiring reversal of the juvenile court’s orders without regard to prejudice.” (In re James F., supra, 42 Cal.4th at p. 915.)
The question of competency first arose during appellant’s Marsden motion when counsel explained she did not have a problem working with appellant but observed that appellant had some mental health problems which prohibited her from understanding the process. Counsel advised the court to proceed with caution in appointing new counsel because new counsel was not going to do what appellant wanted either. Counsel did not think appellant understood what was going on or why because, beyond not hearing what she did not want to hear, appellant also had a defect in processing and understanding information.
The mere existence of a mental illness or disability does not compel appointment of a guardian ad litem. There must be evidence that the mental illness or disability affects the party’s ability to understand the proceeding and assist counsel. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1367-1368.)
During the course of the dependency prior to the Marsden hearing, the court had observed appellant testify and had read reports which stated appellant had mental health problems including problems processing information. However, until counsel’s statements, the court was unaware that appellant’s problems prevented her from understanding the nature of the proceedings and assisting counsel. It was only then that the court could consider appointment of a guardian ad litem. The court did not err in failing to make such an appointment earlier in the proceedings.
The previous information about appellant’s mental difficulties coupled with counsel’s new information that appellant was unable to understand the proceedings constituted substantial evidence that appellant was not competent to understand the proceedings and assist counsel. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) Accordingly, the court correctly inquired whether appellant needed a guardian ad litem. The court then asked appellant if she knew what one was. Because appellant replied in the affirmative, neither the court nor counsel was required to give an explanation of the purpose of a guardian ad litem. Further, because appellant also consented when the court asked if she wanted a guardian ad litem, no hearing to contest the appointment was required.
Appellate counsel’s reliance on appellant’s actions in filing her own petition for extraordinary writ “more than her trial attorney managed to do” to show competence is misplaced. Appellant’s petition was no more than a rehash of issues litigated at the jurisdiction hearing more than 12 months before the opportunity to file a petition for extraordinary writ was triggered and the decision on those issues were long final. (Cal. Rules of Court, rule 8.450.) If anything, her filing of the writ petition without consulting counsel was evidence of her lack of competency.
In any case, appellant suffered no prejudice from the appointment of a guardian ad litem. Both her counsel and the guardian ad litem argued vigorously against termination and to reinstate services. Appellant could have done no more. Reinstatement of services was not at issue and there is no suggestion a petition for modification would have been successful given appellant’s failure to benefit from 12 months of services. As we shall see, appellant could not have prevailed on the issues appropriate to a section 366.26 hearing with or without a guardian ad litem. Any error in the appointment was harmless. (In re James F., supra, 42 Cal.4th at pp. 915, 918-919.)
II
Appellant asserts that it was error not to continue the section 366.26 hearing when the guardian ad litem asked for a continuance when appellant’s medical appointment prevented her from appearing.
The juvenile court has discretion to continue the section 366.26 hearing. (In re Michael R. (1992) 5 Cal.App.4th 687, 694.) However, the exercise of the court’s discretion is guided and limited by section 352 which provides: “Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, 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. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance....” (§ 352, subd. (a).)
By statute, only counsel for appellant is authorized to ask for a continuance. The guardian ad litem, standing in the shoes of the litigant, is not. The purpose of a guardian ad litem is to direct and control the litigation on behalf of a litigant who is incompetent to do so. (In re James F., supra, 42 Cal.4th at p. 910; In re Christina B. (1993) 19 Cal.App.4th 1441, 1454.) However it is the responsibility of counsel for the litigant to make tactical decisions and to conduct the litigation. Evidently, counsel did not perceive a need for a continuance despite appellant’s absence. Counsel had already informed the court that no evidence would be presented on her behalf. Absent the need for her testimony, there was no good cause to delay the hearing for her mere presence particularly when the guardian ad litem was present. The juvenile court did not abuse its discretion in denying the guardian ad litem’s request for a continuance.
III
Appellant contends there was insufficient evidence the minors were likely to be adopted.
Respondent contends the issue was not raised below and was forfeited. This is incorrect. The Department had the burden of proof on this issue and appellant may properly raise the sufficiency of the evidence to support the finding on appeal. (People v. Rodriguez (1998) 17 Cal.4th 253, 262.)
“If the court determines, based on the assessment... and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” (§ 366.26, subd. (c)(i).)
Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The existence or suitability of the prospective adoptive family, if any, is not relevant to this issue. (Id. at pp. 1649-1650, In re Scott M. (1993) 13 Cal.App.4th 839, 844.) “There must be convincing evidence of the likelihood that adoption will take place within a reasonable time.” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
The minors were relatively young and in good health with no developmental issues. In school, K. was performing adequately but, while Crystal liked school, her skills were below age expected norms. Crystal’s teacher had not recommended an evaluation for special education services although the social worker did so. Both minors were in therapy and were making progress. Both had told the therapist they did not want to go home. There were no behavior problems although Crystal would lose focus and stare into space from time to time. The therapist thought this behavior might relate to anxiety and did not believe it presaged serious emotional or mental health problems. At most, the minors had minimal educational and emotional problems which were being dealt with. The foster parents had coped with the minors’ problems for over a year and were committed to adopting them. Substantial evidence supports the court’s finding that the minors were likely to be adopted in a reasonable time. (In re Angelia P., supra, 28 Cal.3d at p. 924; In re Jason L., supra, 222 Cal.App.3d at p. 1214.)
IV
Appellant argues the court should have found that either the benefit and/or the sibling exceptions to the preference for adoption as a permanent plan had been established.
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must select one of several possible alternative permanent plans for a minor child. “‘The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]” (In re Ronell A., supra, 44 Cal.App.4th at p. 1368, original emphasis.) There are only limited circumstances which permit the court to find a “compelling reason for determining that termination of parental rights would be detrimental to the child....” (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(d)(3); Evid. Code, § 500.)
Respondent asserts the issue of exceptions to the preference for adoption as a permanent plan was forfeited. We agree.
While appellant may rely on evidence in the reports to establish an exception to the preference for adoption, appellant must, at the very least, bring the issue of applicability of a specific exception to preference for adoption to the attention of the juvenile court so that the matter may be developed factually, argued, and ruled on. Here, appellant only opposed the Department’s recommendation and argued the adequacy of reunification services, an issue not properly before the court at a section 366.26 hearing. Appellant did not assert that any exception was shown by the evidence before the court. Accordingly, she has forfeited the issue on appeal. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)
Assuming for purposes of argument that the issues were preserved, appellant cannot meet her burden to establish the factual circumstances of any exception.
a. Benefit exception
One of the circumstances in which termination of parental rights would be detrimental to the minor is: “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) The benefit to the child must promote “the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)
Appellant did visit the minors regularly. However, the visits did not demonstrate the existence of a positive relationship between appellant and the minors which outweighed the benefit of adoption. At times, appellant interacted well with the minors, but as her mood shifted she would obsess over injuries, become overly protective, become angry that her needs were not being met, and try to manipulate and pressure the minors. The minors were upset by this chaotic contact with appellant and reacted negatively to it. The benefit to the minors of a safe, stable adoptive home clearly outweighed the benefit they might derive from continued contact with appellant.
b. Sibling exception
The issue of the exception arises because there was some discussion at the section 366.26 hearing about Crystal’s mental health status and fears were expressed that it could affect the foster parents’ willingness to adopt both girls. Minors’ counsel was concerned about possible separation of the minors and the court emphasized that the two minors should be kept together. Appellant did not address the issue. Assuming these facts were sufficient to raise the sibling exception, appellant had to show that termination of parental rights would be detrimental because “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(B)(v).)
While minors’ counsel raised concerns about the foster parents’ commitment to both minors, the therapist’s opinion that Crystal’s mental/emotional problems were treatable with therapy and stability coupled with the CASA’s verbal report that the foster parents were committed to both minors and were actively getting help for Crystal, presented a conflict in the evidence on the question of separation of the minors. To the extent that the information before the court was in conflict, the court resolved the conflict adversely to appellant. (In re Jason L., supra, 222 Cal.App.3d at p. 1214.) Moreover, concerns that the two minors would be separated were purely speculative. Since the evidence showed the foster parents were committed to adopting both girls, the question of severing a sibling bond did not arise. The court’s subsequent direction to the Department to make extraordinary efforts to make sure that the minors stayed together simply reflected the importance of the sibling bond, not a finding that the minors were likely to be separated.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: SCOTLAND, P. J. RAYE, J.