Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SDP20050049
SIMS, J.C. R., the mother of nine-year-old twins Raymond and R., appeals from the trial court order terminating her parental rights. She contends the trial court abused its discretion in failing to investigate whether she required a guardian ad litem and that the finding that the children were adoptable is not supported by substantial evidence. We shall affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Following mother’s arrest for domestic violence in November, 2007, a Welfare and Institutions Code section 300 petition was filed alleging mother had been arrested for domestic violence, mother had mental health problems which had previously affected her ability to care for her children, and that mother and father had a history of domestic violence, substance abuse problems and a history of dependency cases dating back to 2000.
Undesignated statutory references are to the Welfare and Institutions Code.
As the petition alleged, mother had a history of mental health problems. In 2004, she was involuntarily committed under section 5150, because of paranoia and delusions. She was also diagnosed as having bipolar disorder. As part of that history of dependency cases, a prior court had ordered mother be psychologically assessed. Because mother and father then left the jurisdiction, that assessment was never completed.
On November 8, 2007, mother complained to the social worker that she was being treated unfairly, particularly in comparison to how father was being treated. Mother blamed father for the domestic dispute and claimed father was an undercover police officer. Mother yelled at the social worker that father was using drugs and abusing her. Mother and the social worker discussed available services and mother agreed to drug test. Later that day, mother called the social worker and advised her she would not drug test until she spoke to an attorney.
On November 9, 2007, mother retained an attorney. That attorney appeared at the detention hearing, explained to the court that mother was not present because she was ill, and objected to the department’s recommendations. The children were continued in the father’s home, conditioned on their having no unauthorized contact with mother.
On November 14, 2007, the social worker made an unannounced visit to mother’s motel room. Mother would not allow the social worker in the room. The social worker left mother with a package, which included referrals to substance abuse counseling and mental health services. Mother was also advised of the visitation schedule and the need to make arrangements for visitation. Mother did not contact the department to schedule her visitation until November 27, 2007, when her attorney contacted the department regarding visitation.
The following day, the department filed an amended petition, seeking to detain the children because father had allowed mother back in the home, had allowed the children to speak with mother, and had failed to submit to drug testing. A second detention hearing was held on November 29, 2007, at which neither mother nor her retained attorney appeared. In their absence, the court appointed an attorney to represent mother, and the children were detained.
The jurisdiction/dispositional report detailed a long history of domestic violence and substance abuse between the parents. It also delineated mother’s criminal history and the numerous past referrals to CPS. Mother described the relationship with father as very abusive, both physically and emotionally. Mother reported that she had been ordered to participate in Behavioral Health Court and services with El Dorado County Mental Health Department. Mother successfully completed Behavioral Health Court.
The Behavioral Health Court is targeted to adults with mental illnesses, and is a program designed to evaluate, treat and monitor mental health treatment and ancillary services. (http://www.eldoradocourt.org/departments/specialty.aspx)
Documents from the criminal proceedings indicated mother’s treatment included a “dual diagnosis group” which is for those who have both a mental disorder and a substance abuse problem. Mother acknowledged that she had previously been diagnosed as bipolar, but she disagreed with that diagnosis. Mother denied being the aggressor in the November 2007 incident which led to her arrest, claiming she was arrested because of “crooked cops” and father’s lies. Mother also denied ever having a substance abuse problem, despite her past methamphetamine use and having been to in-patient drug and alcohol programs more than five times. When asked what services she would find helpful, mother indicated she wanted “mental help for all the abuse I have suffered from.”
The social worker recommended neither parent receive reunification services. As to mother, this recommendation was based on mother’s likely inability to benefit from such services. This inability to benefit had been demonstrated by her continuing to drink alcohol despite five separate programs for substance abuse, as well as her prior participation in anger management, individual and family counseling, parenting classes and mental health services, which she had completed but had not benefitted from.
Mother and her attorney were present at the December 19, 2007, jurisdictional hearing. Mother made clear she wanted her retained attorney to represent her. At that time, a contested jurisdictional hearing date was set.
The contested hearing was set for December 27, 2007. Although counsel had spoken with mother the night before and the morning of the contested hearing and had made transportation arrangements for her, mother was late to the hearing. She did not appear at the hearing until after the presentation of evidence. The hearing was recessed to allow her to confer with her attorney, after which time counsel indicated he would not present any evidence and the matter would be submitted on the Department report. The court sustained the petition and proceeded to disposition.
The social worker testified that both children indicated they wanted to live with father, as had their older sibling. During the social worker’s testimony, mother was somewhat disruptive, blurting out that the social worker was lying, being advised by her attorney to be quiet so she was not removed from the courtroom, and having a discussion with the bailiff during which she was temporarily removed from the courtroom.
The older sibling, A., was involved in separate dependency proceedings.
The court denied reunification services to both parents under section 361.5, subdivision (b)(13), based on their previous offer of services and the inability to maintain sobriety or stay out of domestic violence situations. Accordingly, the matter was set for a section 366.26 hearing.
Mother was late to the section 366.26 hearing, arriving about an hour and a half after it started.
The section 366.26 report noted both children were developmentally appropriate and adjusting to foster care. Both were in good health, although R. was at risk for anemia and Raymond was anemic. Raymond was described as a handsome boy, who is “intelligent, kindhearted, sensitive, charming and very engaging.” He was exceeding his grade level and enjoyed family oriented activities. Raymond was receiving counseling for his “grief and adjustment issues.” R. was described as a pretty girl, who was “funny, outgoing, social, bossy and full of energy.” R. was having some academic challenges and was receiving counseling to address grief and adjustment issues. She had been diagnosed with an “acute treatment disorder.” The children were “thriving physically, doing well emotionally and fit well in the family experience with stability, boundaries and daily routines.”
The social worker concluded both children were adoptable because of their age, personality, temperament and ability to form healthy emotional attachments.
A prospective adoptive family had been identified for Raymond and R. The family was experienced foster parents, who had been foster parents since 1998. They had also previously adopted foster children. The foster/adopt parents had completed a home study, had a good understanding of issues facing foster and adoptive children and had strong support systems in the area.
At the time of the hearing, the prospective adoptive family had met the children three times. They also understood there would be an ongoing relationship with the twins’ older sibling, A.
The children had indicated they did not want to be adopted, and after 10 years they would run away and find their dad. When they were introduced to the prospective adoptive family, the children cried, but were also curious. Their most immediate concern was whether they would be allowed to continue to see A., which they were reassured they could.
The court was most concerned about terminating parental rights in view of the children’s relationship with A. Accordingly, the matter was continued to allow the court to further consider the matter.
At the continued hearing, mother did not appear. The social worker testified the relationship with A. was beneficial for the children, but adoption would be of greater benefit to them. This conclusion was based on A.’s inconsistency in maintaining contact with the children and her relationship with father. The prospective adoptive mother again testified she was committed to allowing the children to see A.
Following the hearing, the court terminated parental rights and found clear and convincing evidence the children were adoptable. The court concluded, despite the children’s love for their parents, “the life they have been subjected to leads me to conclude they would not benefit from continuing the relationship.” With respect to the relationship with A., the court noted the strong bond, but found “the benefits of having a permanent home that adoption can provide does outweigh the benefits of the children being assured of a continuing relationship with their sister.”
DISCUSSION
I.
Mother contends the trial court abused its discretion in failing to inquire whether her mental health required the appointment of a guardian ad litem, because there was ample evidence she was incompetent. We disagree.
“In a dependency case, a parent who is mentally incompetent must appear by a guardian ad litem appointed by the court. [Citations.] 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.]” (In re James F. (2008) 42 Cal.4th 901, 910.) When the juvenile court already has knowledge of a parent’s incompetency, the court has a sua sponte duty to appoint a guardian ad litem. (In re Lisa M. (1986) 177 Cal.App.3d 915, 919.) In reviewing the juvenile court's actions, the appropriate inquiry on appeal is whether the circumstances as a whole should have alerted the juvenile court that the parent was incapable of understanding the nature or consequences of the proceeding and unable to assist counsel in representing the parent’s interests. (In re Sarah D. (2001) 87 Cal.App.4th 661, 667-674; In re R.S. (1985) 167 Cal.App.3d 946, 979-980.) We review the juvenile court’s actions under the abuse of discretion standard. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368 (Ronell A.); In re R. S., supra, 167 Cal.App.3d at p. 979.)
The record discloses no abuse of discretion by the juvenile court. Mother complains that there was “compelling evidence of incompetence.” We do not agree. There is evidence that mother had mental problems, including suffering bipolar disorder. There is also evidence that her behavior was erratic and sometimes delusional. There was evidence she had previously been hospitalized for a variety of mental conditions, including paranoia, delusions and hallucinations. Mental health problems are not, however, the same as incompetence. The record does not show mother did not understand the nature of the proceedings against her. Nor does it show she was unable to participate meaningfully in those proceedings and cooperate with counsel.
Several cases support the view that mental health problems are not equivalent to legal incompetence. Thus, the circumstances of this case are similar to those in Sara D., Ronell A. and In re R.S. In Sara D., there was evidence that mother suffered from psychological problems, including major depression, post-traumatic stress disorder with chemical dependency, borderline personality disorder, and had fragmented thoughts which made it difficult for her to stay focused. However, that evidence was insufficient to support a conclusion that she did not understand the nature of the proceedings or was unable to assist counsel. (Sara D., supra, 87 Cal.App.4th at p. 674.) Similarly, in Ronell A., father was found competent despite drug abuse and chronic mental illness, schizophrenia, poor impulse control, and the mental capacity of a 12-year-old. (Ronell A., supra, 44 Cal.App.4th at pp. 1358, 1367.) Finally, in In re R.S., the court concluded there was nothing in the record to indicate that a parent who suffered from mild mental retardation and dependent personality disorder did not understand the nature of the proceedings against her and was unable to assist her counsel. (In re R.S., supra, 167 Cal.App.3d at pp. 979-980.)
It is clear then, that there must be some evidence other than mother’s mental health problems to show that she was unable to understand the nature of the proceedings or to assist her counsel. There is no such additional evidence in this case. Here, the record shows that despite mother’s sometimes erratic behavior, she was capable of understanding the nature and consequences of the proceedings and to assist her counsel in those proceedings. Mother appeared personally at most of the hearings throughout the proceedings, albeit sometimes late.
Mother was able to retain counsel to represent her in these proceedings--the same counsel who represented her in her criminal proceedings--and was later able to express her preference for retained counsel over appointed counsel. Mother was able to successfully complete the El Dorado Hills County Behavioral Health Court program and she completed probation. Mother also asked for additional help and services, based on her perception of being abused. Through counsel, mother advised the court that she had two sisters interested in placement and adoption of the minors, and made an oral section 388 motion that she should be granted reunification services because the domestic violence charges against her had been dismissed and she had voluntarily entered into an inpatient substance abuse program.
Mother particularly notes (as evidence of her incompetence), that she twice interrupted the jurisdictional/dispositional hearing and left the courtroom with the bailiff “due to her inappropriate behavior.” However, after mother had a conversation with the bailiff “for a brief discussion of expected courtroom behavior,” there was no further disruptive behavior by her. Mother’s ability to conform her behavior does not support the conclusion that she was incompetent.
There is no evidence that mother was unable to communicate with or assist her counsel. Despite representing her in two matters, mother’s counsel expressed no concerns regarding mother’s competence or her ability to assist in preparing the case or representing her interests. Given these circumstances, the juvenile court did not abuse its discretion by not appointing a guardian ad litem for mother.
II
Mother next contends there was not clear and convincing evidence the children were likely to be adopted within a reasonable time. Specifically, mother claims the nine-year-old twins were experiencing “significant emotional difficulties.” Again, we disagree.
An order terminating parental rights must be affirmed if it is supported by substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.’” (In re Ronell A., supra, 44 Cal.App.4th 1352, 1368, italics omitted.) “In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.” (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).)
“The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent `waiting in the wings.’” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) On the other hand, “the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (Id. at pp. 1649-1650.)
Here, although the children had not been placed in the prospective adoptive parents’ home, there was a prospective adoptive placement. Further, both children were healthy, developmentally and intellectually on track and had no significant behavior problems. To the extent the children had emotional issues related to grief and adjustment, or even stress disorders, those matters were not manifesting into inappropriate behaviors and were being addressed in counseling. Each minor was individually generally adoptable, and the sibling set of two was not so large as to present a significant bar to adoption. (See, e.g., In re B.D. (2008) 159 Cal.App.4th 1218, 1222, 1227.)
A prospective adoptive family, with significant experience in fostering children and adopting foster children, had been identified and had an approved home study. The meetings had begun, and the family was enthusiastic about bringing the children into their home.
Mother’s reliance on In re Brian P. (2002) 99 Cal.App.4th 616 (Brian P.), involving a four-year-old child with a history of “developmental difficulties,” is misplaced. In that case, although the reports prepared for the section 366.26 hearing stated the child was adoptable, they contained no evidence to support this conclusion, and the appellate court determined “th[e] record raise[d] as many questions as assurances about his adoptability.” (Id. at pp. 624-625.) The court concluded the “fragmentary and ambiguous evidence was not enough to buttress the [social service a]gency’s position that [the child] was adoptable.” (Id. at p. 625.)
Here, unlike in Brian P., the social worker’s reports contained information about the minors’ developmental, physical and emotional status, and the finding of adoptability was supported by evidence of the minors’ characteristics and the desire of a family to adopt them. Furthermore, the fact that the family was a suitable adoptive family, expressed interest in the minors, and was making progress towards the goal of adoption supports a determination that the minors were likely to be adopted within a reasonable time either by these prospective adoptive parents or by another suitable adoptive family. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1651.) Accordingly, substantial evidence supports the court’s determination that the children were likely to be adopted in a reasonable time.
DISPOSITION
The order of the juvenile court is affirmed.
We concur: SCOTLAND, P. J., NICHOLSON, J.