Opinion
F051142
5-10-2007
In re T. P., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. P. P., Defendant and Appellant.
Marin Williamson, under appointment by the Court of Appeal, for Defendant and Appellant. B. C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Appellant P.P.s daughter, T.P., was 19 months old when she was adjudged a dependent child in 1998, based upon appellants inability to care for her and physical abuse inflicted by her maternal grandmother. The juvenile court appointed a guardian ad litem to represent appellant because of her chronic mental illness. After a lengthy reunification period, the court terminated the mothers reunification services in 2002, and approved a case plan for T.P.s long-term foster care. The instant case involves appellants challenge to the courts orders after an August 2006 post-permanency review hearing, where the court ordered T.P. to remain in long-term foster care. Appellant asserts that neither her appointed counsel nor her guardian ad litem represented her interests, her guardian ad litem improperly appeared on behalf of her attorney at that hearing, and her attorney was prejudicially ineffective for failing to appear and seek visitation and/or custody. We will affirm.
FACTS
Appellants daughter, T.P., was born in 1997. T.P. lived with appellant and appellants mother, M.P. Appellants older son, I.L. (T.P.s half-brother) also lived with the family. M.P. was I.L.s legal guardian.
The minors true name is J.R.P., but the parties agreed to refer to her as T.P. throughout this action.
On September 22, 1998, 19-month old T.P. and 13-year-old I.L. were taken into protective custody by social workers from respondent, the Kern County Department of Human Services (respondent).
On September 24, 1998, respondent filed a dependency petition in the Superior Court of Kern County, alleging T.P. was within the provisions of Welfare and Institutions Code section 300, subdivisions (b) and (g), based on the following circumstances: that appellant had been diagnosed with schizophrenia which impaired her ability to provide adequate and appropriate care for T.P.; appellant failed to protect T.P. from physical abuse inflicted by M.P.; M.P. inflicted physical abuse by taping the minors hands and fingers so she could not grasp for items; M.P. also placed socks over the minors arms and secured them with rubberbands on the minors upper arms, which left two distinct circular brownish-red marks on the minors upper arms; when the rubber bands were removed, there was noticeable swelling along the minors upper arm, indicting that circulation had been cut off or restricted.
All further statutory citations are to the Welfare and Institutions Code unless otherwise indicated.
The instant detention occurred as a result of referrals respondent received in July, August, and September 1998. During that time, social workers repeatedly visited the residence where appellants family lived and observed appellant experience a psychotic episode and unable to engage in a coherent conversation; M.P. was yelling and irrational; marks and scabs on T.P.s arms, and bruises on her arms and shoulders; appellant said M.P. used tape or rubberbands on the childs arms to keep her from getting into things, but denied that M.P. hit the minor; and appellant was disheveled, dressed in babydoll pajamas, and her face was made up in a garish manner. In September 1998, T.P. was admitted to a hospital for lethargy, inability to stand up, and an altered mental state. The hospital staff reported that M.P. displayed odd conduct and said the childs medical condition was caused by demons, and the child needed prayer and fasting to break the demons apart.
Appellants mental health case manager advised respondent that appellant was diagnosed as a paranoid schizophrenic, and she had a history of not taking her medication. Respondents investigation revealed appellant had a long history with child protective services, beginning in 1986, which involved disturbing behavior by appellant and M.P. Appellant previously whipped her older child with a belt, and went to the older childs school and "slugged" him in the arm after accusing him of stealing money from her. In 1986, M.P. became convinced appellants older child had been sexually assaulted, and persisted in that belief despite a medical examination which revealed the child only suffered from a diaper rash. In 1994, appellant was arrested after she chased a 12-year-old with a knife and kicked the arresting officer.
Respondents investigation further revealed that appellant and M.P. had a difficult relationship, that M.P. appeared to control appellant, and appellant told a social worker that M.P. was evil. In 1993, appellant was arrested after she repeatedly hit M.P. with a wooden broom handle; when the handle broke, appellant grabbed a metal tube and continued to strike M.P. M.P. denied appellant was violent but admitted appellant suffered auditory hallucinations and was not capable of caring for T.P. M.P. stated appellant suffered a breakdown in 1990.
A social worker interviewed appellants older son, 13-year-old I.L., who stated he frequently stayed home from school to take care of T.P. because appellant and M.P. were not home. I.L. demonstrated affection and concern for his half-sister. I.L. was the person who realized T.P. was lethargic and needed to go the hospital. Before they called an ambulance, however, I.L. threw appellants pills in the trash. I.L. stated appellant and M.P. argued a lot, and appellant took medication for a chemical imbalance. When appellant failed to take her medication, she talked to her herself and said things that were not true. I.L. said appellant did not take street drugs. I.L. confirmed that M.P. put tape, socks, and rubberbands on T.P.s hands when the child tried to pull things down from tables and shelves, but they pulled them off. I.L. said he was not scared to be at home, he always had food to eat, and he appeared to be a well-adjusted child.
On September 25, 1998, the juvenile court ordered T.P. detained and she was placed in a foster home. I.L. was released to the custody of M.P., his legal guardian, after it was determined that he was well-adjusted and not at risk.
When T.P. was detained, the petition identified three men as alleged fathers. The court-ordered paternity tests subsequently revealed that R.T. was T.P.s biological father. The court provided for the father to receive reunification services, but he never complied with any aspects of the plan. The court terminated the fathers reunification services, he never sought review of that order, and he is not part of the instant appeal.
I.L. had very limited contact with T.P. in the initial stages of the reunification period, and there were no further visitations between them. After I.L. achieved majority, respondent was unaware of his whereabouts.
On October 26, 1998, the court convened the contested jurisdictional hearing. Appellants attorney informed the court:
"Based upon my evaluation of this case in speaking with my client, I feel its imperative that I ask for Guardian Ad Litem for the mother based upon her mental state at this time, in order to assist me in preparing a proper representation of her at this time."
The court granted the request and appointed Bruce N. Meier, an attorney, as appellants guardian ad litem, and continued the jurisdictional hearing.
The record identifies appellants guardian, Bruce N. Meier, as being from the "Law Offices of Bruce N. Meier" in Bakersfield. The website for the State Bar of California confirms that Bruce N. Meier is a licensed attorney in Bakersfield.
On November 9, 1998, the court conducted the continued jurisdictional hearing, and found the petitions allegations to be true.
On December 14, 1998, the court conducted the dispositional hearing, adjudged T.P. a dependent child, removed her from appellants custody, provided appellant with family reunification services, and ordered appellant to complete child neglect counseling, parent training, and mental health counseling. T.P. was placed in a licensed foster home.
Reunification Services
In 1999, appellant and M.P. regularly attended supervised visitations with T.P., but the quality of the visits gradually deteriorated. Appellant used profanity, often left the visitations to smoke cigarettes, failed to interact with T.P., and often argued with M.P. M.P. regularly inspected T.P.s body and accused the foster parents of abuse, and claimed the social worker and foster parents conspired to take T.P. away. M.P. claimed there were "bugs" all over T.P.s face, but the social worker was present and noted the claim was not true. Appellant exhibited extremely unusual behavior during the visits, such as wearing pasty white makeup on her face with dark circles painted around her eyes, rubbing her underarms with folded paper towels, and pulling a string off T.P.s clothing and using it to floss her teeth. Appellant was disoriented as to time and space, and would mumble or speak to someone not present in the room. Her speech was usually exaggerated, loud, profane, and sexual, and not related to the situation at hand.
Appellant initially participated in all aspects of the case plan, completed parent training and child neglect counseling, and attending mental health counseling. M.P. attended all of appellants counseling sessions and interfered with her mental health treatment. M.P. adamantly opposed changes in appellants medication, and impaired appellants ability to put into practice the techniques she learned in counseling. M.P. was in charge of appellants medication and withheld it because she believed it was making appellant fat. M.P. also accused the counseling staff of tampering with the medication.
Appellants psychiatric evaluation confirmed the diagnosis of chronic paranoid schizophrenia. She suffered from mood swings, depressions, delusions, and auditory and visual hallucinations. Appellant admitted previous use of marijuana and crank. Appellants counselor reported her main problem was staying on her medication, and M.P. was very controlling: "`As long as she is complying with the medication the child is in no danger, but her mental illness would hinder her if she was not taking the medication." Appellants case manager reported that appellant did not acknowledge she suffered from a mental illness, she did not take responsibility for her own medication, and "if given the opportunity [appellant] would not take her medication or seek out counseling."
As of June 1999, T.P. was two years old, living in a licensed foster home, and her placement was stable. The foster parents reported she was well-behaved and appropriately mannered for her age. She was developmentally on target and socialized with other children. The foster parents were willing to provide a permanent home as legal guardians, but were not interested in adoption. An adoption assessment determined T.P. was likely to be adopted.
In August 1999, appellants mental health clinician from the Kern County Mental Health System reported appellant suffered from a major, chronic mental illness, she needed assistance with her daily living and care, and efforts were being made to place her in a supervised board and care facility to ensure the appropriate treatment.
"... [D]ue to [appellants] chronic and disorganized lifestyle, she is not yet ready to care for her daughter .... [Appellants] mental illness requires management and stabilization before she should be considered as a full time parent; she is currently symptomatic, which includes delusional beliefs and disorganized thinking at times. It is also believed that such symptoms can be better controlled with medication, however, medication must be consistent and well managed."
Appellants mental health treatment was inconsistent because she had moved between at least three different mental health agencies. Appellant reported she was applying to the housing authority for separate housing to move out of M.P.s residence. Appellant refused to consider a board and care facility and wanted to raise T.P.
First Termination of Reunification Services
On September 3, 1999, the juvenile court conducted the six-month review pursuant to section 366.21, subdivision (e) and considered the social study reports. Appellants mental health counselor testified appellant needed to enter a board and care facility to address her mental health needs, and there may not have been appropriate follow-ups or referrals in appellants mental health services. The counselor did not think appellant had received a fair chance to become more independent and it was not in appellants best interests to live with M.P., and M.P. did not understand appellants mental illness.
The court found appellant made moderate compliance with the case plan, she made acceptable efforts, and she had cooperated, but she made only minimal progress and there was not a substantial probability that T.P. would be returned to appellants care within six months. The court terminated reunification services and scheduled a section 366.26 hearing for January 2000.
The First Appellate Review
On September 7, 1999, appellant, through her attorney, filed a petition with the superior court for writ review of the juvenile courts order which terminated reunification services and set the section 366.26 hearing. The superior court denied relief and appellant filed a petition with this court for extraordinary writ review (case No. F033972).
As of December 1999, T.P.s foster parents expressed their desire to adopt T.P., even though they were aware of her family history of schizophrenia in two of T.P.s first-degree relatives, which placed T.P. at risk of developing the disorder at a rate of more than 10 times the normal population. T.P. was in good health, friendly toward other people, and had good social skills. The social study report prepared for the scheduled section 366.26 hearing stated that appellant continued to have supervised visits with T.P. T.P. called appellant by her first name, resisted appellants affections, screamed in protest when appellant picked her up, and struggled to get away. Appellant continued to display bizarre behavior and auditory hallucinations during visitations. Appellant seemed restless and agitated, and used inappropriate and profane language in front of T.P. During the visits, T.P. displayed extreme negative and anxious behaviors. After the visits, T.P. displayed negative behavior, threw herself on the floor, and had nightmares for two days.
The social study report stated T.P. had a troubled and shallow relationship with appellant and M.P., she never asked for either of them, and she displayed negative behavior after her visits with them.
"It would be beneficial to sever [T.P.s] relationship with them as her behavior has improved steadily with reduced contact with them. She demonstrates a behavior indicating an attachment and bond with the prospective adoptive parents and shows a definite preference for them. She has ability to form positive attachments. The present caretakers have expressed their desire to adopt [T.P.]. If for some reason they could not adopt her, it may be difficult to find another prospective adoptive family given her history of mental illness."
On December 3, 1999, this court filed a nonpublished opinion in case No. F033972, which granted appellants writ petition and reversed the termination of appellants reunification services. This court cited the testimony and findings at the review hearing, and found the juvenile court lacked statutory authority to terminate reunification services because it did not find appellant failed to participate in services, pursuant to section 366.21, subdivision (e). This court ordered the juvenile court to vacate the section 366.26 hearing and provide appellant with at least seven months of additional reunification services designed to facilitate the return of T.P. to appellants custody, "including but not limited to services to help [appellant] address her mental health problems and achieve a level of independence from her mother."
Proceedings on Remand
On January 3, 2000, the juvenile court vacated the scheduled section 366.26 hearing. On January 13, 2000, the court ordered for appellant to receive family reunification services for an additional seven months, and noted that five months of services had already been provided to appellant. The modified case plan required appellant to maintain a relationship with T.P., participate in appropriate mental health counseling, obtain independent housing from M.P., and achieve a level of independence from M.P.
On January 28, 2000, respondent filed a petition for modification for the court to eliminate M.P.s visits and issue a no-contact order with T.P., and that M.P.s visits with T.P. were not in the childs best interests because M.P. interfered during appellants visits with T.P., M.P. displayed inappropriate behavior during her own visits with T.P., and T.P. engaged in violent outbursts after M.P.s visits. M.P. filed opposition.
On February 22, 2000, the court granted the petition for modification and issued a no-contact order between T.P. and her maternal grandmother, M.P. That order has never been reversed.
M.P. belatedly challenged the no-contact order, and subsequently filed numerous petitions with the juvenile court and this court, which demanded visitation and/or custody of T.P. Both the juvenile court and this court either denied or dismissed these petitions, and M.P. is not a party to the instant appeal.
Second Termination of Reunification Services
Respondents August 2000 report stated that appellant continued to demonstrate poor parenting abilities, complete lack of disciplinary skills, bizarre behavior, and delusional and hallucinatory conduct during her supervised visits with T.P. Her symptoms and conduct indicated she was not taking the prescribed psychotropic medications, and she failed to attend or complete the requisite counseling programs. Appellants mental health counselor stated she was unstable, failed to take her medication, suffered auditory hallucinations, and refused to accept a higher level of care.
Appellant had moved into her own apartment, but it was in the same complex as M.P.s apartment, and M.P. continued to undermine and interfere with appellants treatment and case plan. When the social worker informed appellant about these issues, appellant threatened to "`steal my damned kid, thatll fuck you up!" It was determined that appellant posed a danger to T.P. During subsequent mental health evaluations, appellant refused to cooperate or take her medication.
Appellant continued to attend supervised visitations with T.P., but displayed her lack of parenting skills and concern for T.P.s well-being. Appellant regularly allowed T.P. to be violent toward her, she yelled at T.P., and she threw a lit cigarette on the ground near T.P.s bare feet. At the beginning of a visit, T.P. would be receptive to appellant but only called her by her first name. As the visit continued, appellant was regularly unresponsive to T.P., and T.P. would start acting out. After a few minutes in appellants presence, T.P. separated from appellant, started screaming, or became violent toward appellant. After about 20 minutes, T.P. usually asked for her foster mother and to go home.
In contrast to her behavior during appellants visits, T.P.s foster parents reported she was not violent or aggressive at home. T.P. could instantly switch from being violent toward appellant, to being loving and cooperative with her foster mother. Her foster parents continued to express their desire to adopt her.
The social study report concluded that appellant failed to address her mental illness, she resisted receiving mental health services, she refused to take her psychotropic medications, and she had been noncompliant with any of the service providers involved in her case.
"... [Appellant] has demonstrated a complete lack of ability to parent [T.P.]. [Appellant], herself, is at risk. She is mentally unstable and has obviously decompensated throughout this period under review. [Appellant] has done little to stabilize her own situation or utilized the services offered by [respondent], let alone prepare herself for caring for her three-year-old daughter. Returning [T.P.] to [appellants] care would place [T.P.] at great risk of abuse or neglect."
Respondent recommended termination of reunification services and scheduling a permanency planning hearing.
On September 25, 2000, the court terminated appellants reunification services and set a section 366.26 hearing.
Termination of Parental Rights
According to respondents January 2001 report, prepared in anticipation of the section 366.26 hearing, appellant continued to have weekly supervised visits with T.P., who was almost four years old, but the sessions were "`consistently problematic." Appellant continued to display bizarre behavior and auditory hallucations. Appellant spent the visits checking T.P. for any bruises or injuries instead of playing or interacting with her. At the end of the visits, T.P. eagerly left and searched for her foster mother. The social worker believed the visits had become "slightly better in quality" but that was because of "the childs security in her present placement than with any improvement the mother has made in regard to either her mental condition or parenting abilities." T.P. "easily" departed from appellant after each visit and she was able to tolerate the visits because she realized "the visits will end and she will return to the care of her foster parents where she feels safe." T.P. "has now developed enough security about permanency with the caretakers that the negative behaviors are now occasional instead of consistent after the visits." T.P.s foster parents were still interested in adopting her. T.P. was previously evaluated with mild developmental delays, but her developmental skills had increased over the past year. She was in good health and there were no significant behavior or developmental problems.
The report recommended termination of appellants parental rights, T.P. was an excellent candidate for a successful adoption, and an adoption was likely to take place.
"... [T.P.] is currently attached to her current caretaker and does not have a significant bond to either birth parent. She is doing very well with the family with whom she is placed, and these caretakers wish to raise her to adulthood. [T.P.] is receiving the love, stability and continuity of care that she needs. Severing the legal ties of her parents will not be detrimental to [T.P.s] well-being and is in her best interest."
On March 14, 2001, this court filed the opinion in the unrelated case of In re Sara D. (2001) 87 Cal.App.4th 661 (Sara D.), and held that in a dependency proceeding, the juvenile court must conduct an informal hearing and afford a parent the opportunity to be heard prior to the appointment of a guardian ad litem, and appointment of the guardian ad litem without such a hearing violates the parents constitutional right to due process. (Id. at pp. 671-674.)
On April 3, 2001, the juvenile court conducted a hearing as to the possible application of Sara D. to this case. Ms. Smith, appellants attorney, stated appellant no longer required a guardian ad litem. Appellant addressed the court, said she understood the proceedings, and that she did not need a guardian. The court relieved Mr. Meier as appellants guardian. Appellant then moved for another attorney because she did not want T.P. adopted, and engaged in a rambling statement about the social worker, a chili dog, and her missing belt. Appellant complained Ms. Smith never talked to her, but Ms. Smith clarified she communicated with appellants guardian. The court denied appellants motion for a new attorney, and continued the matter so Ms. Smith could directly consult with appellant.
On April 24, 2001, the juvenile court conducted the section 366.26 hearing. Ms. Smith, appellants attorney, stated appellant opposed adoption, appellant had grave concerns about T.P.s health in foster care, and appellant wanted to reunify with T.P. Ms. Smith also argued appellants due process rights were violated because of the improper appointment of the guardian, based on Sara D., and such rights could not be waived. The court replied it addressed the Sara D. issues when it discharged the guardian at the prior hearing. The court terminated appellants parental rights to four-year-old T.P.
The Second Appellate Review
On April 27, 2001, appellant, through her attorney, filed a notice of appeal of the juvenile courts termination of reunification services and parental rights (case No. F038088).
On October 24, 2001, the juvenile court conducted a status hearing pursuant to section 366.3. According to respondents report, the foster parents had seen much improvement in T.P.s developmental abilities and they still intended to adopt her. T.P. had lived with them since March 1999, she displayed strong trust and attention toward her foster family, and she said that she wanted to live with them forever. There had been no visits with appellant since the termination order.
On October 30, 2001, this court filed a nonpublished opinion in case No. F038088, and reversed the juvenile courts termination of appellants parental rights and reunification services. This court found that under Sara D., the juvenile court violated appellants due process rights when it appointed a guardian ad litem without conducting the appropriate hearing and providing appellant with an opportunity to be heard, and the error was not harmless given the significant legal and constitutional rights at stake. This court remanded the matter for the juvenile court to conduct the appropriate evidentiary hearing under the following circumstances:
"... At the evidentiary hearing, the court shall determine whether, in the absence of a guardian ad litem for the mother, it would have entered any order more favorable to the mother at the September 2000 review hearing. In making this determination, the court may wish to consider questions including but not necessarily limited to: (1) what position, in the absence of the guardian ad litem appointment, the mother would have taken?; (2) as a result what, if any, different position the mothers trial counsel would have advanced to the juvenile court?; (3) what, if any, evidence the mothers trial counsel would have consequently introduced or countered?; (4) what would the Departments response have been?; and (5) would the juvenile court consequently have entered any order more favorable to the mother?
"At the conclusion of the evidentiary hearing, if the juvenile court determines it would have entered a more favorable order and declined to terminate reunification services, the court shall reinstate reunification services for an additional period not to exceed six months and make other orders as appropriate. If, on the other hand, the juvenile court determines it nevertheless would have terminated reunification services, the court may make the necessary findings and the appropriate orders, including an order setting a new section 366.26 hearing."
The Third Termination of Reunification Services
On April 18, 2002, the juvenile court conducted the hearing on remand. The court denied appellants oral motion for appointment of another attorney. The court conducted the appropriate hearing pursuant to Sara D., again appointed Mr. Meier as appellants guardian ad litem, and ordered the transcript sealed.
Appellant never filed an appeal or writ petition to challenge the courts second appointment of Mr. Meier as her guardian, and he continued to act as her guardian throughout the pendency of this matter.
On May 13, 2002, the juvenile court conducted the review hearing. Ms. Smith, appellants attorney, stated that appellant wanted T.P. returned to her custody. Appellant testified that she did not learn much at the parenting classes, she already knew how to raise a baby, she was capable of caring for T.P. at the time of the detention, and her visits with T.P. went well. Appellant testified she only had mild depression "and its got a lot to do" with T.P., and T.P. "is a bad little girl." Appellant testified the foster parents abused T.P., and T.P. became upset during the visits because the social workers tricked her into thinking she could go home with appellant. Appellant testified she became schizophrenic because T.P. was taken away from her. During appellants testimony, the court admonished M.P. not to signal or mouth answers to appellant.
The court found that even if appellant had testified at the previous hearings, her testimony would not have changed its ruling, it would have still terminated reunification services, and appellant still displayed mental health issues. The court again terminated appellants reunification services and set a section 366.26 hearing.
The Third Appellate Review
On May 13, 2002, appellant, on her own behalf, filed a notice of intent to file a petition for extraordinary relief (case No. F040570), as to the juvenile courts decision to conduct a section 366.26 hearing.
On August 14, 2002, this court filed a nonpublished opinion in case No. F040570, and denied appellants petition for relief as facially inadequate, pursuant to In re Sade C. (1996) 13 Cal.4th 952, 994.
According to respondents September 2002 report, prepared in anticipation of the section 366.26 hearing, T.P. was now five years old but there had been some drastic changes in her life and placement. She had lived with the same foster parents since March 1999, and they had intended to adopt her. On July 29, 2002, however, the foster parents requested respondent to remove T.P. because she made violent threats and been aggressive against other children in the house. The foster parents told the social worker that T.P. displayed aggressive behavior over the previous year, and they tried to work with T.P. about the problems without informing respondent. The social worker tried to persuade them to work through the problems with respondents help, but the foster parents were "adamant" about removing T.P. from the home. T.P. had attended preschool, but she was mean to the other children and showed an attitude to the teacher; this behavior was not reported to respondent until after T.P. was removed from the foster home. T.P. had seen a counselor the prior year, but the counselor decided there was no need for any counseling services.
As a result of these issues, T.P. was removed from the foster parents in August 2002. The social worker noted that T.P. did not seem upset when she was moved to another foster home, and "it was almost as though there was no attachment" to the previous foster parents. There were no families that were interested in adopting her because of her behavior problems and family history of mental illness. The social study report recommended a permanent plan of long-term foster care.
On September 10, 2002, appellant, on her own behalf, filed a petition for modification with the juvenile court, and requested M.P. to receive custody of T.P. On the same day, the court conducted the section 366.26 hearing. Mr. Meier, appellants guardian, made a special appearance for Ms. Smith, appellants attorney. The court did not terminate parental rights but instead ordered a case plan of long-term foster care.
Review Hearings
Thereafter, the court conducted a series of post-permanency review hearings pursuant to section 388.3, to review T.P.s placement in long-term foster care. On August 26, 2003, the court continued the plan for long-term foster care. T.P. was six years old, and had been moved to another foster home in February 2003. The new foster parents observed some unusual behavior. When she initially arrived in the foster home, T.P. displayed negative behaviors such as hitting, grabbing, and making inappropriate remarks. On one occasion, T.P. confronted a foster sibling in the middle of the night and forced a plastic object up the siblings nose. T.P. received individual and group counseling, and she was being monitored for early signs of a major mental illness. The social worker visited with T.P., who said she liked her foster home but also said her mother was ill and that was why she had not visited her.
Appellant had three visits with T.P. in 2002 and 2003. Appellant again displayed disturbing behavior, delusions and hallucinations, and she was agitated and used profanity. She was not being treated for her mental illness. Appellant was unable to control her behavior, T.P. was visibly uncomfortable, and T.P. frequently asked her, "`momma, why are you talkin to yourself?" T.P. asked the social worker to remind appellant to take her medication so she would not talk to herself. The social worker cancelled a visit in March 2003 because appellant was hallucinating, having paranoid delusions, insisted she was being followed, and was out of control. Appellant cancelled a visit in June 2003. In August 2003, appellant contacted the social worker and asked about T.P.s well-being; the social worker encouraged her to schedule a visit, but appellant said she would let the court and the police take care of it.
On August 24, 2004, the court conducted another status hearing and again continued the plan for long-term foster care. T.P. was seven years old, and had been removed from two foster homes in the prior months because of difficult behavioral issues. T.P. used profanity and threatened to call the police to get the caretaker in trouble. The caretaker started to videotape activity in the house because of T.P.s threats. T.P. was receiving psychotropic medications and counseling. Appellant had two visits with T.P. and brought her gifts.
Mr. Meier made a special appearance for the fathers attorney at this hearing.
On November 30, 2004, T.P.s attorney filed a petition for modification with the juvenile court, on T.P.s behalf, and requested the court to order that T.P.s visits with appellant could only occur at T.P.s discretion. The petition was based on the social workers descriptions of appellants prior visits with T.P., as set forth in the social study reports. The petition asserted appellants erratic behavior frightened T.P. The matter was set for a hearing.
Respondent filed a social study report in January 2005, recommended granting T.P.s petition to restrict visitation with appellant, and recounted the history of this case and appellants conduct at the visitations, as set forth ante. T.P., who was seven years old, continued to have weekly supervised visits with appellant, but she "stated very clearly" to her attorney, her therapist, and the social worker that she did not want to have visits with appellant. T.P. had become increasingly fearful of appellant, refused to sit near her, and was generally unresponsive toward her. Appellant used profanity, dressed inappropriately, talked to herself, and was agitated, unfocused, and unpredictable during these visits. When a scheduled visit approached, T.P. became increasingly moody; after the visits, T.P. "`takes her anger and frustrations out on the whole family." Appellant had brought gifts on some of her visits, including clothes and money. T.P. continued to receive intensive therapy for her behavior and emotional problems.
On January 31, 2005, the court conducted a hearing on T.P.s petition for modification. Appellant did not appear; both her attorney and guardian were present, and they did not contest the petition. The court granted the petition and ordered that appellant would have monthly supervised visits with T.P., supervised by respondent, and the visits would be at the childs discretion.
On August 24, 2005, the court conducted another status hearing. T.P. was eight years old. She had been moved to another foster home in July 2005 because of behavior problems, and she had just been moved to Jamison Center. T.P.s attorney was very concerned about the child because she did not look well and seemed to have deteriorated. T.P.s attorney stated that based upon her own contacts with appellant and M.P., she believed they both suffered from severe mental illness, and there was now the great concern that T.P. was starting to show similar signs. T.P. was moved from the foster home because she hit younger children, lied, screamed, and used foul language. She told the caretakers that she would tell the social worker that they hit her. She had been expelled from the Boys and Girls Club because she hit and scratched the staff. The caretakers reported T.P. could be calm one minute and then explode the next. T.P. had been diagnosed with attention deficit hyperactivity disorder, depression, oppositional deficit disorder, posttraumatic stress disorder, and reactive attachment disorder. She was receiving mental health counseling and medication.
Mr. Meier made a special appearance for Ms. Smith, appellants attorney; appellant was not present at this hearing.
According to the social study report, appellant maintained telephone contact with the social worker, the contacts were "mostly non-coherent," and she asked to visit T.P. During T.P.s monthly meetings with the social worker, the child repeatedly said she did not want to visit appellant. The court continued the long-term foster care plan.
On September 21, 2005, the court appointed a "Court Appointed Special Advocate" (CASA) for T.P. In December 2005, the CASA reported that she already had many visits with T.P. and found her a bright and aware child. She had not observed any unreasonable behavior or communication problems.
"... [T.P.] is however fearful of people leaving and has expressed anxiety over anything happening to me. She has also told me of her strong feeling about not having any contact with her biologic[al] family. She appears uncomfortable when talking about her mother or grandmother."
T.P. had been placed in a group home in Modesto, which was a stable environment but represented another change in her life. M.P. had apparently filed another petition for visitation, the CASA believed visits with M.P. would not be in T.P.s best interests because of M.P.s prior abuse and neglect, and there was nothing that could be gained from such contacts. "I strongly believe that at this time it is not in her best interest to have reminders of a past that causes anxiety."
The court subsequently denied M.P.s petition for visitation.
In January 2006, M.P. sent a long and rambling letter to the juvenile court, in which she accused the court of keeping T.P. from her without any good reason; that T.P. was fine while she was under the care of appellant and M.P.; appellant did a good job taking care of T.P.; T.P. was never physically harmed in M.P.s house; T.P.s problems began when she was placed in foster homes; T.P. had been physically abused in the foster homes; a foster parent burned T.P.s skin, fingers, face, and hair; T.P. was sexually assaulted by another foster child; T.P. never had any problems during the visits with M.P. and appellant; T.P. was upset during and after the visits because she wanted to go home with appellant and M.P.; M.P. discovered T.P. has been abused when she saw the child at visitations; appellant controlled M.P. rather than the opposite situation; M.P. was shocked to learn appellant had mental problems; M.P. was the victim in this case, rather than appellant or T.P.; and social workers lied about M.P. to keep T.P. away and prevent M.P. from reporting T.P.s abuse in foster homes. M.P. subsequently sent additional letters to the court expressing similar opinions, and filed a petition for visitation and/or custody based upon similar grounds. The court denied M.P.s petition.
On February 22, 2006, the court conducted another status review hearing and continued the long-term foster care plan. Appellant no longer called the social worker to inquire about T.P.; appellants last telephone call was in September 2005. T.P. was now eight years old. In August 2005, her prior foster parents took her to Jamison Center and reported they could not control her behavior. At Jamison Center, she displayed extremely difficult behavior, including hitting, biting, and kicking the staff. In October 2005, she was placed in a group home in Modesto which specialized in children with behavioral and emotional problems. The group home manager reported T.P. displayed an explosive temper while other residents were receiving attention by the staff. T.P. used foul language, she was extremely sexualized for her age, and she made serious lies and sexual accusations against the staff. She ran away from the home for several hours, along with a boy and a girl; when she returned, she claimed the girls had sex with the boy. She was being seen on a regular basis by the CASA.
T.P. was diagnosed with attention deficit hyperactivity disorder, depressive disorder, social phobia, borderline intellectual functioning, psychosocial and environmental problems, physical abuse, and parental incapacity. She told her psychologist that she heard voices at night that kept her from sleeping, but they were nice voices. T.P. was not receiving counseling because her "behavior has been so unstable that counseling would not be effective at this time."
In August 2006, another social study report was filed, which revealed that nine-year-old T.P. had been moved to the Center for Children, a residential treatment level 14 group home in San Diego. This was T.P.s 13th placement since being taken into protective custody in 1998. T.P. continued to display serious behavior problems, she had been placed in restraints and a safety room on a daily basis, and she had been hospitalized twice in the acute psychiatric unit at the University of California San Diego. She repeatedly attempted to harm herself and others. Since the hospitalization, however, she showed some improvement. Her mood changed rapidly throughout the day, and she was impulsive and had difficulty bonding and trusting others. She received individual therapy two to four times a week, but had not been able to complete any group sessions because of her aggressive and impulsive behavior toward others. T.P. had improved in her willingness to participate in groups and interact with peers, and her assaults on her peers had decreased in the past month.
T.P.s psychiatrist diagnosed her with major depressive disorder with psychotic features, posttraumatic stress disorder, and reactive attachment disorder. Her medication had been adjusted based upon her diagnosis and condition. She had done well in the classroom, and her behavior was better in school than in the residential unit. The staff recommended that T.P. not be moved to a lower level of care until she showed signs of improvement in her impulsive behavior for no less than three months.
The social worker visited T.P. in San Diego in August 2006, and asked the child about M.P.:
"... When asked, [T.P.] stated that she remembers her grandmother [M.P.]. When asked, she stated that she would like to visit her grandmother. [T.P.] stated that her grandmother buys her things. When asked if she would like to visit her grandmother if her grandmother did not buy her things, [T.P.] stated that she would not."
During another visit, the social worker asked T.P. if she wanted to see appellant:
"... [T.P.] stated that she did want a visit with her mother. [T.P.] stated that her mother buys her things. At that time, [T.P.] was asked by her CASA ... if she would like to visit her mother if her mother did not buy her any thing and [T.P.] stated that she would not."
T.P. requested to have contact with a previous foster mother, whom she called "`mom," and the foster mother agreed to receiving telephone calls from her. The report concluded that long-term foster care was the only alternative for T.P. because there was no one willing or able to adopt or assume legal guardianship.
T.P.s CASA, also filed a report on T.P.s status, and agreed with the August 2006 social study report. The CASA had maintained regular contact with T.P. by telephone, mail, and visits, and continued to visit her in San Diego. The CASA and the social worker attended T.P.s promotion from third to fourth grade in San Diego. Her current therapist reported that T.P. "`beams" when she talks about the CASA, she keeps the cards her CASA sends her and takes them to bed with her.
The CASA noted that when T.P. was still in Modesto, she acted fearful of the world around her. When the CASA took T.P. on an outing, the child held her hand and stayed close to her, and was afraid of being run over. Since T.P.s last hospitalization and medication change, her conduct had stabilized and improved, and her previous extreme behaviors had stopped. She no longer voiced fears about sharks or car accidents, and let the staff help her when she felt unsafe. The staff worked closely with her on how to handle situations without losing control or becoming violent toward others. T.P. told the CASA "that she is afraid that her mother would try to get her back. She stated that made her feel scared."
On August 22, 2006, the court conducted another status review hearing. Mr. Meier, appellants guardian ad litem, stated he was appearing for Ms. Smith, appellants attorney, and Mr. Walbaum, the fathers attorney. The county counsel stated there were funding problems with T.P.s current placement in San Diego, which was a for-profit group home, but various officials were meeting to address the issue. Mr. Meier stated he had talked to appellant, and "she asked that I inform the Court that she is ready when the Court chooses for her to either visit or have placement. [¶] And after that comment, I submit it." The court reviewed the evidentiary reports and again continued the plan for long-term foster care.
Appellants pending appeal is from the events at this hearing.
The Instant Appeal
On August 31, 2006, appellant, on her own behalf, filed a notice of appeal, which is the matter currently before this court. In the notice of appeal, appellant wrote that the foster homes caused T.P.s psychological problems, and her family could have taken care of her and avoided these issues. Appellant challenged the courts orders at the August 22, 2006, hearing and also the courts ruling in 2004 which vested T.P. with discretion to visit appellant.
On November 7, 2006, appellant, through her appointed appellate counsel, filed with this court a "Motion to Declare Notice of Appeal Properly Filed." This court deferred ruling upon this procedural motion pending the resolution of the instant case.
On appeal, appellant contends she retained the ability to file the instant notice of appeal in propria persona, even though she was still represented by the guardian ad litem. Appellant also contends that her guardian ad litem failed to properly represent her interests at the August 22, 2006, status review hearing because he appeared on behalf of her attorney and failed to aggressively pursue her desire for renewed visitation and custody of T.P.
Appellant separately contends her attorney was prejudicially ineffective for failing to appear at the August 22, 2006, hearing and the attorney should have raised a myriad of issues in support of her desire to resume visits with T.P., and reunite T.P. with her maternal family. Appellant contends that all of T.P.s emotional problems were the result of the instant dependency proceeding and her multiple foster home placements, and that T.P.s emotional condition deteriorated because the court limited appellants visits with her.
DISCUSSION
I.
THE GUARDIAN AD LITEM
Appellant contends that even though the juvenile court appointed a guardian ad litem to represent her, and that appointment still exists, she retained the ability to file the notice of appeal in this case in propria persona because she is challenging whether the guardians appointment was appropriate. Appellant also contends her guardian ad litem failed to represent her interests when he appeared on behalf of her attorney at the August 22, 2006, status review hearing.
A. The Duties and Powers of guardian ad litem
We begin with the well-settled principles as to a guardian ad litems duties and powers. In any proceeding in which an incompetent person is a party, that person shall appear by a guardian ad litem appointed by the court in which the action is pending. (Code Civ. Proc., § 372.) In the context of dependency proceedings, the test for incompetence is whether the party has the capacity to understand the nature or consequences of the proceeding and is able to assist counsel in a rational manner in the preparation of the case. (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186.) Where the party has been afforded a fair hearing, the standard for review is whether there is substantial evidence in the record to support a finding of incompetence. (Sara D., supra, 87 Cal.App.4th at pp. 673-674.)
The appointment of a guardian ad litem for a parent in a dependency proceeding is significant because such an appointment removes the control of litigation from the parent, whose vital rights are at issue, and transfer it to the guardian. (In re Jessica G., supra, 93 Cal.App.4th at pp. 1186-1187.) Consequently, the parents due process rights must be protected before a guardian ad litem is appointed. (Sara D., supra, 87 Cal.App.4th at pp. 671-672.) Those rights are satisfied if the parent consents to the appointment of a guardian ad litem or, if the parent does not consent, the court holds an informal hearing in which the parent has an opportunity to explain why a guardian ad litem is not required. (Id. at pp. 668, 671-672; In re Daniel S. (2004) 115 Cal.App.4th 903, 912 (Daniel S.).)
"[A] guardian ad litem represents the interests of a person in legal proceedings who lacks capacity to represent himself or herself in those proceedings." (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965.) "A guardian ad litem is not a party to the action, but merely a partys representative [citations], an officer of the court [citation]. `"He is like an agent with limited powers." [Citations.] `The duties of a guardian ad litem are essentially ministerial. [Citation.]" (In re Christina B. (1993) 19 Cal.App.4th 1441, 1453 (Christina B.).)
An attorney has a duty to speak with his or her client. Once a guardian ad litem is appointed, however, the attorney communicates with the guardian ad litem and not the client. (Daniel S., supra, 115 Cal.App.4th at p. 915.) A guardian ad litem oversees the attorneys work to ensure the incompetents legal interests are protected. (Williams v. Superior Court (2007) 147 Cal.App.4th 36, 51.)
"The function of a guardian ad litem for an incompetent party in an adversarial proceeding is well understood. In the adversarial context, the guardian ad litems function is to protect the rights of the incompetent person, control the litigation, compromise or settle the action, control procedural steps incident to the conduct of the litigation, and make stipulations or concessions in the incompetent persons interests. [Citation.] In such cases, the guardian ad litems role `is more than an attorneys but less than a partys. [Citation.]" (In re Charles T. (2002) 102 Cal.App.4th 869, 875-876.)
"... The guardian may make tactical and even fundamental decisions affecting the litigation but always with the interest of the guardians charge in mind. Specifically, the guardian may not compromise fundamental rights, including the right to trial, without some countervailing and significant benefit." (Christina B., supra, 19 Cal.App.4th at p. 1453.)
The guardian ad litems powers are thus subject to the fiduciary duties owed to the incompetent, and the requirement that court approval be obtained for certain acts. (J.W. v. Superior Court, supra, 17 Cal.App.4th at p. 965.) "Like any other officer of the court (receiver, conservator, referee, etc.), a guardian ad litem is subject to court supervision. Should a guardian ad litem take an action inimical to the legitimate interests of the [incompetent], the court retains the supervisory authority to rescind or modify the action taken." (Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496, 1502.) Moreover, "a party aggrieved by the order adjudging her incompetent and appointing a guardian, had the right to appeal therefrom if she so desired. [Citations.] The rule that a person under disability must appear by general guardian, or guardian ad litem, does not apply to a case where the very question involved is the validity of the order of guardianship itself and where the appeal is taken directly from that order." (Guardianship of Gilman (1944) 23 Cal.2d 862, 864.)
In Berry v. Chaplin (1946) 74 Cal.App.2d 652 (Berry), the guardian ad litem of an unborn child brought a paternity action against the defendant. (Id. at p. 653.) The guardian ad litem, the defendant, and the childs mother entered into a stipulation providing that if blood tests showed the defendant was not the father, the action would be dismissed with prejudice. (Id. at pp. 653-657.) Although blood tests subsequently showed the defendant was not the father, the guardian ad litem refused to dismiss the action and the trial court denied the defendants motion to dismiss. (Id. at p. 654.) Berry held the trial court had properly denied the dismissal motion because the guardian ad litems limited powers did not include the power to enter into the stipulation, and the trial court had no power to approve it. (Id. at p. 657.)
"... A minor, who must of necessity appear by his guardian, is not bound by the admissions of the guardian which mean the sacrifice or giving away of the wards property. [Citations.] The relationship between a guardian ad litem or the attorney whom he employs and the minor is not the same as that between an attorney and an adult client. It is the duty of the guardian and the attorney to protect the rights of the minor, and it is the duty of the court to see that such rights are protected. The court may set aside or disregard concessions of the guardian which have not already been judicially approved and which are shown to the court to have been improvidently made. Any acts or concessions that apparently waive or surrender any material right of the minor, such as the right to a trial, should be set aside unless they be shown to be beneficial or, in any event, not prejudicial to the rights and interests of the minor. [Citation.] The appointment of a guardian ad litem is not a bare technicality and the office of guardian involves more than perfunctory or shadowy duties. It is the duty of a guardian ad litem to protect or defend a suit, as the case may be. The guardian ad litem can neither admit anything against nor waive anything in favor of his ward, but the adversary of the infant must be required to prove his whole case. [Citations.] [¶]...[¶]
"Neither the guardian ad litem nor the attorneys for the minor, nor both, had power to consent to a judgment depriving the minor of its right to claim support from defendant without the opportunity of a trial at which all available evidence could be introduced for consideration by the jury, not merely such evidence as the parties considered proper for the determination of the issue involved." (Berry, supra, 74 Cal.App.2d at pp. 657-658.)
In Cloud v. Market Street Ry. Co. (1946) 74 Cal.App.2d 92 (Cloud), a wrongful death case, the court held that while a guardian ad litem "cannot prejudice the substantial rights of a minor by any admissions, waivers or stipulations. [Citations.] [T]his rule is not ... carried to the extent of depriving the guardian ad litem ... of the power to bind the minor in the merely procedural steps incident to the conduct of the litigation" and "`does not prevent a guardian ad litem ... from assenting to such arrangements as will facilitate the determination of the case in which the rights of the infant are involved." (Id. at p. 101.) Cloud further noted: "The question whether to demand a jury trial or waive one and try the case to the court is one of trial tactics and procedure only, and the waiving of a jury trial does not in any sense affect the substantial rights of a party." (Id. at p. 102.) Cloud thus held that a guardian ad litem may waive the right to a jury trial; not that such a guardian is wholly free to waive trial altogether. (Id. at pp. 101-103.)
Christina B. similarly held that a guardian ad litem could not waive a parents fundamental right to a contested trial at the jurisdictional hearing in a dependency matter, the waiver exceeded the scope of the guardian ad litems powers, and the juvenile court erred in accepting the waiver. (Christina B., supra, 19 Cal.App.4th at pp. 1453-1454.) "Rather than protecting or benefiting [the parent], the waiver operated to deprive her of fundamental constitutional rights to a hearing with no countervailing benefit. This was no mere matter of procedure. ... [W]e are aware the parent in a dependency case does not have the same protections as a criminal defendant declared incompetent, such as a jury trial on the issue of competence and the suspension of proceedings until competence is regained. These factors militate in favor of narrowly construing the guardian ad litems powers." (Ibid.)
B. Appellants Ability to File the Notice of Appeal
The preliminary issue in this case is whether appellant retained the ability to file the notice of appeal in propria persona, even though a guardian ad litem had been appointed to represent her in this dependency action. As explained ante, the juvenile court appointed Mr. Meier as appellants guardian ad litem at the contested jurisdictional hearing on October 26, 1998. In October 2001, this court remanded the matter for the juvenile court to conduct the appropriate evidentiary hearing to address the due process issues raised in Sara D., as to the appointment of a guardian ad litem. In April 2002, on remand, the juvenile court conducted the appropriate hearing and again appointed Mr. Meier as appellants guardian ad litem. Appellant never filed an appeal or petition to challenge the juvenile courts second appointment of Mr. Meier as her guardian ad litem to represent her in this dependency matter.
After the August 2006 status review hearing, appellant filed a handwritten notice of appeal on her own behalf, and wrote that she challenged the juvenile courts finding that she had not made any progress and the decision to continue T.P. in long-term foster care. Appellants appointed appellate counsel subsequently filed a motion with this court, to declare that appellants handwritten notice of appeal was properly filed. Appellate counsel asserted appellant retained the ability to file a notice of appeal because she sought to challenge the ongoing need for a guardian ad litem, and whether the guardian ad litem failed to represent her interests. Respondent has not commented on this issue.
Given the procedural history of this case, it is arguable as to whether appellant retained the ability to file her own notice of appeal in propria persona, or whether such an action was within the guardian ad litems duty to "control procedural steps incident to the conduct of the litigation." (In re Charles T., supra, 102 Cal.App.4th at p. 875.) Appellant received the appropriate due process protections required by Sara D. and she never challenged the second appointment of Mr. Meier as her guardian ad litem. It could be argued, however, that appellants contentions are related to the essential nature of the guardian ad litems conduct in this case. She asserts the guardian ad litem failed to represent her interests or raise appropriate arguments on her behalf to facilitate visitation and regain custody of T.P. She also asserts her attorney should have argued there was no further need for her to be represented by the guardian ad litem at the August 22, 2006, status review hearing. As such, appellants arguments may be interpreted to include a challenge to the guardian ad litems fiduciary duties to her, and/or whether the guardian ad litem compromised her fundamental rights without any countervailing or significant benefit. (Guardianship of Gilman, supra, 23 Cal.2d at p. 864.)
It also could be argued, however, that the guardian ad litems appearance at the August 2006 review hearing, and his statements to submit the matter on the latest social study report, does not rise to the same type of waiver of the fundamental rights at stake in Christina B., Berry, and Cloud. Nevertheless, we will review the issues raised by appellant, assuming without deciding that she retained the ability to file the notice of appeal under these particular circumstances.
C. The guardian ad litems duties
Appellant contends that Mr. Meier, her guardian ad litem, failed to "fulfill his duty" and act in her interest at the August 22, 2006, status review hearing; he improperly appeared as both her guardian ad litem and on behalf of her attorney; he should have requested a contested hearing on restoring her visitation and custody rights; he submitted the matter without challenging the social study report or making any argument; he failed to further appellants wishes to pursue visitation and regain custody of T.P.; and the court should not have accepted Mr. Meiers submission given the absence of appellants appointed counsel.
Appellant begins by asserting that Mr. Meier violated his duties as her guardian ad litem when he appeared for her appointed counsel at the August 22, 2006, status review hearing. As explained ante, Mr. Meier is an attorney licensed to practice in this state. The court may allow substitution of counsel based upon unavailability of appointed counsel. (§ 317, subd. (d).) An attorney who specially appears for a litigant, in the place of the litigants attorney of record, owes a duty of care to that litigant. (See, e.g., Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 444-446.)
The role of a guardian ad litem may be filled by an attorney. (See, e.g., In re Josiah Z. (2005) 36 Cal.4th 664, 680, 682, fn. 8.) Mr. Meier, as appellants guardian ad litem, had the power to control the litigation and make certain procedural decisions. Consent to a substitution of counsel would be a procedural decision that a guardian ad litem would have the right to make. (Sara D., supra, 87 Cal.App.4th at pp. 667-668; Christina B., supra, 19 Cal.App.4th at p. 1452.)
Appellant was thus represented by counsel at the status review hearing, and Mr. Meiers appearance on behalf of her attorney did not violate any duties toward her. In fact, he assumed additional duties of care as both her guardian ad litem and attorney at that hearing. Appellants complaints about Mr. Meiers assumption of the dual roles of guardian ad litem and counsel is analogous to an ineffective assistance claim based upon representation by counsel with a conflict. In such a case, as with any ineffective assistance claim, the existence of a conflict does not require reversal in the absence of a showing of prejudice. (See, e.g., In re Celine R. (2003) 31 Cal.4th 45, 56-61; In re Dennis H. (2001) 88 Cal.App.4th 94, 98-100; People v. Castillo (1991) 233 Cal.App.3d 36, 62; People v. Clark (1993) 5 Cal.4th 950, 994-995.)
Appellants specific complaints about Mr. Meiers performance at the August 22, 2006, status hearing are based on the brevity of his statements to the court. As set forth ante, Mr. Meier stated he had talked to appellant, and "she asked that I inform the Court that she is ready when the Court chooses for her to either visit or have placement. [¶] And after that comment, I submit it." Appellant argues that it is questionable whether Mr. Meier accurately quoted her purported wishes—that she supposedly would wait for the court to decide whether she was entitled to visitation or placement—"since the record as a whole demonstrates that appellant at all times wanted [T.P.] back home." Mr. Meiers statements, however, were consistent with appellants prior statements, as described in respondents reports leading up to that hearing. In June 2003, appellant cancelled a visit with T.P. In August 2003, appellant contacted the social worker and asked about T.P. When the social worker encouraged appellant to schedule a visit, appellant replied she would let the court and the police take care of it. Appellant had not called the social worker to inquire about T.P. since September 2005. The entirety of the record strongly suggests that Mr. Meiers statements about appellants wishes were consistent with appellants most recent statements to the social workers.
Appellant contends the courts orders at this hearing must be reversed because Mr. Meiers "perfunctory" comments were "effectively a submission to the recommendations of the social services agency that could only result in the outcome that occurred—an order by the juvenile court continuing the existing orders" for long-term foster care. Appellant asserts Mr. Meier should have requested a contested hearing and pursued appellants wishes for visitation and custody of T.P., and the court should not have accepted Mr. Meiers "submission." Appellant further asserts that it would not have been futile for the guardian ad litem to take these steps because "there was abundant basis for advocacy" to argue for visitation and custody.
As we will fully discuss in section II, post, appellants assertions that either her guardian ad litem and/or appointed counsel failed to represent her interests are refuted by the lengthy record in this case, which demonstrates appellant failed to make any progress or address any of the issues which triggered the initial dependency petition in the nine years since T.P. was detained. She repeatedly refused to take even the most basic steps to address her severe mental health issues, she refused to accept the recommended treatment and medications, she insisted that she knew how to raise T.P. and that T.P. was a bad girl who caused her mental illness, and she denied the existence of any of the conditions which triggered the initial dependency petition. Appellants arguments invite this court to speculate about what the guardian ad litem could have done, without acknowledging that the instant record is completely devoid of any factual evidence to support a petition for modification. As we will explain post, either the guardian ad litem or the attorney may bring a petition for modification at any time, but the parent has the burden of showing by a preponderance of the evidence both that (1) there is new evidence or a change of circumstances, and (2) the proposed modification would be in the best interests of the child. (§ 388; In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).) Given the existing factual record, the guardian ad litem, acting as appellants attorney at the August 2006 status review hearing, was not obliged to make the futile motions now suggested by appellant, simply based upon pure speculation as to what might have been done.
II.
INEFFECTIVE ASSISTANCE OF COUNSEL
We thus turn to appellants primary issue in this case, that her trial counsel was prejudicially ineffective for failing to appear at the August 22, 2006, status review hearing, and that counsel was obliged to take various steps to pursue appellants desire for visitation and custody of T.P. Appellant argues counsels failure to take specific steps toward appellants goal of reunification constitutes prejudicial ineffectiveness, and requires reversal of the juvenile courts order for T.P. to continue in long-term foster care.
A parent in a juvenile dependency proceeding is entitled to the effective assistance of trial counsel. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659.) To establish denial of that right, the parent must show (1) counsels failure to act as a reasonably competent dependency attorney would, and (2) a reasonable probability that a more favorable result would have been achieved but for counsels errors. (Id. at pp. 1667-1668; In re Merrick V. (2004) 122 Cal.App.4th 235, 254-255.)
"Although a claim of ineffective assistance of counsel is usually raised by way of a writ of habeas corpus, it may be effectively raised as part of an appeal in the rare case where the appellate record demonstrates `there simply could be no satisfactory explanation for trial counsels action or inaction. [Citation.] ... [S]uch a claim, made as part of the appeal, may be asserted even after the order terminating parental rights at the section 366.26 hearing. [Citation.]" (In re S.D. (2002) 99 Cal.App.4th 1068, 1077.)
The parent must show that counsels omissions were not the results of reasonable tactical decisions. (In re Merrick V., supra, 122 Cal.App.4th at p. 255.) The parent must affirmatively show that the omissions of counsel involved a crucial issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics. (In re Dennis H., supra, 88 Cal.App.4th at pp. 98-99.)
Before we address appellants specific allegations of ineffective assistance, it is important to note the procedural circumstances in which appellant raises these issues. In 1998, T.P. was 19 months old when she was declared a dependent child because of M.P.s physical abuse and appellants inability to care for her, and placed in foster care. Appellant failed multiple opportunities to comply with reunification plans which addressed her particular needs and the reasons for the dependency. T.P. was placed with foster parents who were willing to adopt her, but they changed their minds and asked respondent to remove T.P. from their home when the child began displaying disturbing and disruptive behavior. There were no families interested in adopting her because of her behavioral problems and family history of mental illness, and respondent recommended T.P.s placement in long-term foster care. On September 10, 2002, the court conducted the section 366.26 hearing. It terminated appellants reunification services but it did not terminate appellants parental rights, since adoption was not possible, and placed T.P. in long-term foster care and scheduled regular status review hearings pursuant to section 366.3.
Appellants issues herein are based on the assertion that counsel should have appeared and raised specific issues at the section 366.3 status review hearing held on August 22, 2006, and counsels failure to take these steps was prejudicial because appropriate advocacy would have resulted in visitation and custody of T.P.
"... A parents interest in the companionship, care, custody and management of his or her children is a fundamental civil right. [Citation.] Children, too, have a compelling independent interest in belonging to their natural family. [Citation.] In addition, each child has a compelling interest to live free from abuse and neglect in a stable, permanent placement with an emotionally committed caregiver. [Citation.] The governmental interest in a childs welfare is significant. `[T]he welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. [Citations.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 223.)
The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof, and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. (In re Marilyn H. (1993) 5 Cal.4th 295, 307 (Marilyn H.).) "[A]lthough the preservation of a minors family ties is one of the goals of the dependency laws, it is of critical importance only at the point in the proceeding when the court removes a dependent child from parental custody [citation]. Family preservation ceases to be of overriding concern if a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services. Then, the focus shifts from the parents interest in reunification to the childs interest in permanency and stability. [Citation.]" (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339-1340, fn. omitted.)
Section 366.3 allows the court to hold periodic review hearings after the court has terminated reunification services but not parental rights, and placed a child in long-term foster care. (Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1068 (Nahid H.).) "At the [section 366.3] hearing, the court is required to inquire about the progress being made to find a permanent home for the minor. [Citation.] The court must determine the appropriateness of the placement, the continuing appropriateness of the permanent plan, the extent of compliance with the child welfare services case plan, and the adequacy of services provided to the minor. [Citation.] ... `It shall be presumed that continued care is in the interests of the minor, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the minor." (Id. at p. 1068, quoting then § 366.3, subd. (e)(4), italics added.)
Under certain circumstances, a parent may request a contested section 366.3 hearing on visitation issues. (In re Kelly D. (2000) 82 Cal.App.4th 433, 438-440.) In other circumstances, when a court recognizes that a previous order was erroneously, inadvertently, or improvidently granted, it is not necessary for the parent to file a section 388 petition for modification, and the court has inherent authority to modify such an order at a section 366.3 status review hearing. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 110-111, 116-117.)
The standard at a section 366.3 hearing "mirrors the standard applicable to petitions to modify under section 388." (Nahid H., supra, 53 Cal.App.4th at p. 1068.) Section 388 allows a parent to petition the juvenile court to change, modify or set aside any previous order, including an order terminating reunification services. (§ 388, subd. (a).) "[U]p until the time the section 366.26 hearing is set, the parents interest in reunification is given precedence over the childs need for stability and permanency." (Marilyn H., supra, 5 Cal.4th at p. 310.) "Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability." (Id. at p. 309, italics added.) "[I]n fact, there is a rebuttable presumption that continued foster care is in the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) "The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue. Section 388 provides the `escape mechanism that ... must be built into the process to allow the court to consider new information." (Marilyn H., supra, 5 Cal.4th at p. 309; see also In re Zacharia D. (1993) 6 Cal.4th 435, 447; Stephanie M., supra, 7 Cal.4th at p. 317.)
Thus, the parent, as moving party, has the burden of showing by a preponderance of the evidence both that (1) there is new evidence or a change of circumstances, and (2) the proposed modification would be in the best interests of the child. (§ 388; Nahid H., supra, 53 Cal.App.4th at p. 1068; Casey D., supra, 70 Cal.App.4th at p. 47.) A parent must show changed, not changing, circumstances. (Casey D., supra, 70 Cal.App.4th at p. 47.) The change of circumstances or new evidence "must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) The juvenile court may summarily deny the motion if the petition fails to make a prima facie showing of the requisite elements. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.)
In considering whether the parent has made the requisite showing, the juvenile court may consider the entire factual and procedural history of the case. (In re Justice P., supra, 123 Cal.App.4th at pp. 188-189.) The court may consider factors such as the seriousness of the reason leading to the childs removal, the reason the problem was not resolved, the passage of time since the childs removal, the relative strength of the bonds between the parent and child, the nature of the change of circumstance, and the reason the change was not made sooner. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.)
"[A] parents liberty interest in the care, custody and companionship of children cannot be maintained at the expense of their well-being." (In re Julie M. (1999) 69 Cal.App.4th 41, 50 (Julie M.).) "Childhood does not wait for the parent to become adequate." (Marilyn H., supra, 5 Cal.4th at p. 310; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) After the termination of reunification services, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Stephanie M., supra, 7 Cal.4th at p. 317.) A court which hears a parents motion for modification under section 388 motion, at this stage of the proceedings, must recognize the shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Stephanie M., supra, at p. 317; Marilyn H., supra, 5 Cal.4th at p. 310.)
With these standards in mind, we turn to appellants allegations that her attorney was prejudicially ineffective in failing to seek the restoration of visitation and custody of T.P. Appellant contends her appointed counsel was ethically required to maintain communication with her and the guardian ad litem, and to advance appellants position to seek visitation and custody of T.P. Appellant asserts counsel violated her ethical duties because she failed to appear for the August 22, 2006, status review hearing, counsel should have set the matter for a contested hearing to challenge respondents plan for long-term foster care, respondents recommendation "conflicted with appellants wishes and interests," and counsel was obliged to pursue appellants interests for visitation and custody "in a loyal, competent and zealous manner."
Appellant acknowledges that T.P. "is a very disturbed young woman and her future is very bleak," but posits her own reasons for T.P.s problems:
"[T.P.s] maternal family is [T.P.s] only real hope. And the family has strengths. The entire record is permeated with evidence that appellant and [M.P.] have shown an enduring commitment to [T.P.]. Even when appellant was unable to visit she inquired about [T.P.]. In spite of her illness, appellant has avoided homelessness and lived in the same building during the entire dependency. She has participated in services, attended numerous visits with [T.P.], showed a consistent interest in [T.P.], spent from her meager resources to buy [T.P.] gifts, and appeared at many of the court hearings. [M.P.] was [I.L.s] guardian and [I.L.] did well. [I.L.] is now an adult. [M.P.] saw to it that appellant, [I.L.] and [T.P.] had food and shelter, and helped appellant take her medications. To this day, [M.P.] has not abandoned either appellant or [T.P.]. Instead, [M.P.] has tirelessly followed the dependency proceedings, shown concern for [T.P.], and labored to get her visits with [T.P.] restored. Instead of viewing [M.P.] as hindrance, she can be viewed as a resource." (Fn. omitted.)
Appellant insists that T.P.s emotional condition deteriorated after the court effectively terminated their visits, and that "fact" proves "that contact with appellant is not the cause of [T.P.s] condition. In fact, it suggests that the converse might be true—that contact with appellant was [T.P.s] last link to home and when that lifeline was severed she lost hope." Appellant suggests that counsel should have formulated a plan "in accordance with appellants interests and wishes" to "utilize family strengths and renew [T.P.s] family ties," with the goal of returning T.P. to appellants custody. Appellants proposed plan would involve written communications, followed by visitations, between T.P., appellant, M.P. and I.L. Appellant insists that resuming visitations between T.P. and her biological family would be in the childs best interests, because she has such a great need for human connection that she has been forced to reach out to her CASA and former foster mother.
"Contact with appellant can provide a source of parental love, biological connection, and historical continuity for which an occasional visit from a court appointed special advocate or a telephone conversation with a former foster parent is no substitute."
Appellants multiple arguments fail to acknowledge the undisputed history of this lengthy case, and her own failure to comply with any aspect of the reunification plan. The record herein contains overwhelming evidence that appellant suffered from a chronic and severe mental illness, that she was repeatedly offered appropriate services, counseling, and treatment to address her specific problems and the reasons for the initial detention, she repeatedly moved between service providers, she refused to accept the appropriate treatment to address her condition, and she failed to make any progress to address the issues which triggered the initial detention. Instead, the record reflects appellants mental illness continued unabated throughout the pendency of this case, as she repeatedly refused to take the appropriate medication, arrived at visitations while delusional and suffering from hallucinations, and failed to show any appreciation for the seriousness of her condition and the circumstances which led to T.P.s detention.
Appellant makes much of the alleged coincidence of the limitation of her visitations with the onset of T.P.s emotional problems, and posits the theory that T.P.s mental health deteriorated because she lost hope of returning to her biological family. The entirety of the record refutes this assertion, and instead demonstrates that T.P.s violent outbursts began in 2002, and coincided with and became worse with each visit with appellant, whereas the court did not limit appellants visits until 2005. Indeed, appellants argument ignores the severity of her own condition, and the serious and disturbing effect it had upon T.P. during their visits.
Our rejection of appellants arguments is not based upon the mere fact of her chronic mental illness, but on the undisputed evidence of her refusal, for over nine years, to accept the appropriate treatment and medication necessary to safely care for T.P.
"... Rather than mandating a specific disposition because the mother is schizophrenic, the diagnosis should lead to an in-depth examination of her psychiatric history, her present condition, her previous response to drug therapy, and the potential for future therapy with a focus on what affect her behavior has had, and will have, on her children.
"Harm to the child cannot be presumed from the mere fact of mental illness of the parent and it is fallacious to assume the children will somehow be `infected by the parent. The proper basis for a ruling is expert testimony giving specific examples of the manner in which the mothers behavior has and will adversely affect the child or jeopardize the childs safety. Other jurisdictions have recognized that the evidence must reveal a detriment to the child resulting from the mothers illness before removal is justified. [Citations.]
"The court should examine each factual situation to determine what type of detriment might result and not impose its set of values as to what constitutes a `good home environment on a family who may not subscribe to those same values. There is no national consensus on how to raise a `healthy adult, and a juvenile court should examine the question of parental custody from the childs view point. [Citation.] Often the harm created by removing a child from its parents may be more serious than the harm which the state intervention seeks to prevent [citation] because the courts lack the ability to insure that the placement is superior to the childs own home. Moreover, children in foster care experience the anxiety of identity problems and conflicting loyalties caused by having three sets of adults with a stake in caring for them.... The children may also be harmed by viewing the placement as punishment for some unknown thing they have done wrong. The court should recognize that `"[t]he consensus of expert opinion holds that it is most important to avoid multiple placements for children between six months and three years of age. Each additional placement may retard the development and may impair their ability to form lasting attachments." [Citations.]
"Although balancing these two potential harms may be difficult, `[t]he juvenile court is constantly faced with the necessity of choosing on behalf of a child, the best of several not entirely satisfactory alternatives. It is seldom possible to make such a choice on the mechanical basis that the proof of some particular fact "ipso facto" calls for a predetermined response. [Citation.] It cannot be presumed that a mother who is proven to be `schizophrenic will necessarily be detrimental to the mental or physical well-being of her offspring. There are innumerable eccentric parents whose behavior on certain occasions may be less then socially acceptable and yet they are loving and compassionate parents. Conversely, there are parents who always exhibit socially acceptable behavior publicly, but whose children have parent-induced psychological and emotional problems their entire lives. The trial courts duty in this situation is to examine the facts in detail. The social worker must demonstrate with specificity how the minor has been or will be harmed by the parents mental illness. [Citation.] The court must then weigh the evidence of the harm which will be caused the children if they remain in parental custody against the harm caused by placing the children in foster care. Only after this balancing has taken place, based on all the available evidence, can the court make an informed decision which can be said to be truly in the best interests of the children." (In re Jamie M. (1982) 134 Cal.App.3d 530, 540-542, italics in original, fns. omitted; see also In re Heather P. (1988) 203 Cal.App.3d 1214, 1228-1229, overruled on other grounds in In re Richard S. (1991) 54 Cal.3d 857, 864, 866, fn. 5; In re David D. (1994) 28 Cal.App.4th 941, 953.)
The record is replete with evidence that appellants bizarre and disturbing behavior during her visits with T.P. had a profound affect on the child, and may have led to the childs violent outbursts in the foster homes, all of which occurred much earlier than the courts limitations on appellants visitations in 2005.
It is clear that T.P.s placement in long-term foster care is far from ideal. It perhaps would have been preferable for T.P. to have been adopted by her original foster parents, where she initially thrived and felt a sense of security. However, that couple backed out of the adoption and were apparently overwhelmed when T.P. began to show signs of her own emotional problems. The withdrawal of the prospective adoptive parents resulted in T.P.s placement in a series of foster homes, with no prospects for adoption, and may have been one of the underlying reasons for her emotional deterioration. Indeed, respondents reports sadly describe a cycle in which T.P. was moved to numerous foster placements because of her own serious behavioral issues, which resulted in T.P.s latest placement in a level-14 facility and treatment in a psychiatric unit. But there is no evidence that T.P.s own emotional problems would have been alleviated if she had continued to receive visits from appellant and/or M.P., or returned to the custody of either individual.
Appellant argues counsel was prejudicially ineffective because she should have challenged the no-contact order between T.P. and M.P., and moved to restore M.P.s visitations with T.P. based upon the changed circumstances of "[T.P.s] deterioration, [T.P.s] compelling need for human connection which makes a renewal of family ties very much in her best interest, and [T.P.s] statement hat she wanted to visit with [M.P.]." Appellant complains this case needs a "`paradigm shift" in the way the juvenile court views M.P., "so that her strengths can be utilized to the benefit" of appellant and T.P. M.P. is not a party to the instant case, and both the juvenile court and this court have denied her numerous petitions in this matter. But M.P. and appellant share a common thread in this case: they repeatedly refused to acknowledge the seriousness of their conduct which led to T.P.s removal. M.P. steadfastly denied being responsible for T.P.s physical abuse, even though she admitted placing the tape and rubberbands around the arms of a 19-month-old child. M.P. also displayed disturbing behavior, denied appellant suffered from a mental illness, interfered with respondents attempts to offer appellant the appropriate treatment, prevented appellant from taking her medication, and insisted that T.P. was just fine until she was removed from their home. As with her other arguments, appellants assertions about M.P. are refuted by the record and fail to raise any evidence to support changed circumstances or that M.P.s visits and/or custody of T.P. would be in the childs best interests.
Appellant next asserts that counsel was prejudicially ineffective because she should have urged respondent to arrange additional visitations between T.P. and I.L., and cites the social study reports from 1998, 1999, and 2000, about the positive relationship between the half-siblings. Appellant posits that counsel should have argued for an intensive visitation schedule between I.L. and T.P. to facilitate T.P.s eventual return to her maternal family, notes that I.L. was returned to the custody of M.P., who was his legal guardian, and that the social study reports described I.L. as a well-adjusted young man. "If [I.L.] has adjusted so well to appellants illness, [T.P.] can too." Appellant accurately notes that I.L. showed great concern for T.P. at the time of the detention. I.L. apparently assumed a great deal of responsibility for caring for T.P., and the reports described numerous situations when the teenager stayed home from school to be T.P.s only caregiver. While I.L. obviously played an important role in his half-sisters infancy, and sporadically joined appellant and/or M.P. for visits, he apparently left M.P.s household when he reached majority and his whereabouts are unknown. The laudatory actions of a 13-year-old boy, which occurred nine years ago, cannot serve as a linchpin to facilitate T.P.s return to appellant, given her failure to comply with the reunification plan.
Appellants next assignment of ineffective assistance is based on the courts order of January 2005, when it limited appellants visits with T.P. to occur at the childs discretion. Appellant complains that even though some of her visits with T.P. in 2004 were found to be "`positive," T.P.s attorney successfully obtained the limited visitation order, and there were no further visits between appellant and T.P.. Appellant asserts the January 2005 visitation order was invalid and void pursuant to Julie M., supra, 69 Cal.App.4th 41, counsel was not required to file a section 388 petition to challenge that order, the juvenile court had the inherent authority to reconsider an invalid order at any time, even at a section 366.3 review hearing, counsel was prejudicially ineffective for failing to challenge that order at the August 2006 status review hearing, and counsels failure to challenge the order is prejudicial because the court would have been obliged to reverse the visitation restriction and order resumption of appellants visits with T.P.
We must turn to visitation issues to resolve this contention. "Absent a showing of detriment caused by visitation, ordinarily it is improper to suspend or halt visits even after the end of the reunification period. [Citations.] Visitation may be seen as an element critical to promotion of the parents interest in the care and management of their children, even if actual physical custody is not the outcome. [Citation.]" (In re Luke L. (1996) 44 Cal.App.4th 670, 679; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138.) "On the other hand, visitation is not integral to the overall plan when the parent is not participating in the reunification efforts." (In re J.N. (2006) 138 Cal.App.4th 450, 458-459.)
"But a parents liberty interest in the care, custody and companionship of children cannot be maintained at the expense of their well-being. [Citation.] While visitation is a key element of reunification, the court must focus on the best interests of the children `and on the elimination of conditions which led to the juvenile courts finding that the child has suffered, or is at risk of suffering, harm specified in section 300. [Citation.] This includes the `possibility of adverse psychological consequences of an unwanted visit between mother and child. [Citation.]" (Julie M., supra, 69 Cal.App.4th at p. 50.)
Once family reunification is no longer the primary goal, the states interest requires the court to focus on the childs placement and well-being, rather than on the parents challenge to custody. (Marilyn H., supra, 5 Cal.4th at p. 307.) Nevertheless, absent a showing of detriment caused by visitation, ordinarily it is improper to suspend or halt visits even after the end of the reunification period. (In re Luke L., supra, 44 Cal.App.4th at p. 679.) If the court selects a permanency plan other than adoption at the section 366.26 hearing, it is required to make an order for parental visitation unless it finds visitation would be detrimental to the physical or emotional well-being of the child. (§ 366.26, subd. (c)(4)(C).)
The power and responsibility to regulate visitation rests in the judiciary. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 756.) The court must determine whether visitation should occur and then provide the appropriate county agency with visitation guidelines, including any limitations or conditions. (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237 (Danielle W.).) The juvenile court is permitted to delegate to a third person, such as a county social worker or therapist, the responsibility to manage the details of visitation such as the time, place and manner thereof, but may not delegate absolute discretion to determine whether any visitation occurs. (In re Chantal S. (1996) 13 Cal.4th 196, 213 (Chantal S.); In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476-1478 (Donnovan J.); In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009.) Likewise, visitation may not be dictated solely by the minor, although the minors desires regarding visitation may be a dominant factor in administering visitation. (In re Nicholas B., supra, 88 Cal.App.4th at pp. 1138-1139; Julie M., supra, 69 Cal.App.4th at pp. 48-51; Danielle W., supra, 207 Cal.App.3d at pp. 1237-1238.)
In Danielle W., the juvenile court granted visitation with the mother at the discretion of both the Department of Childrens Services and the detained children, and the court stated it would not "`force" the children to visit their mother if they did not want to. (Danielle W., supra, 207 Cal.App.3d at p. 1233.) Danielle W. held the visitation order was valid and did not represent an improper delegation of judicial power. (Id. at p. 1237.) The order merely required the Department to take into account the childrens wishes in connection with visitation and "[i]n the context of this case, this means the children should not be forced to visit with their mother against their will and in no way suggests that the minors are authorized to do more than express their desires in this regard." (Ibid.) Danielle W. recognized that a childs aversion to visiting an abusive parent may be a "dominant" factor in administering visitation, but an order which grants the governmental agency with complete and total discretion to determine visitation would be invalid. (Ibid. )
In Chantal S., the courts visitation order specified that visitation was to be "`facilitated" by the minors therapist, and that visitation was to begin when fathers chosen therapist determined father had made "`satisfactory progress for a time." (Chantal S., supra, 13 Cal.4th at p. 213.) Chantal S. held the order was valid because it did not vest the therapists with "`absolute" discretion to determine whether visitation should occur. The order gave the minors therapist "no discretion whatsoever," and the directive for the therapist to "`facilitate" visitation "appears designed merely to mandate that [the minors] therapist cooperate with the courts order that visitation occur once certain conditions are met." (Ibid. )
Donnovan J. reversed a visitation order issued during the reunification period which stated the father had "`no visitation rights" without the "`permission of the minors therapists." (Donnovan J., supra, 58 Cal.App.4th at p. 1475.) Donnovan J. held the visitation order constituted an unlawful delegation of judicial authority because "it conditions visitation on the childrens therapists sole discretion. Under this order, the therapists, not the court, have unlimited discretion to decide whether visitation is appropriate." (Id. at p. 1477.)
In Julie M., the juvenile court issued a visitation order during the reunification period which gave the children "the option to consent to, or refuse, any future visits with their mother." (Julie M., supra, 69 Cal.App.4th at p. 46.) Julie M. held the court abused its discretion "in giving the children absolute discretion to decide" whether their mother could visit them. (Id. at p. 48.) "The order essentially delegated judicial power to the children—an abdication of governmental responsibility which was disapproved even in" Danielle W. (Id. at pp. 48-49.) Julie M. held that it would have been appropriate to issue a visitation order which vested limited discretion with the county welfare agency to consider the childrens desires regarding visitation, as done in Danielle W. (Id. at pp. 50-51.)
While Julie M. disapproved the language used in the visitation order, the court acknowledged there was evidence that the children "sustained legitimate emotional damage" from the mothers visits, and proposed various alternatives by which the juvenile court could alleviate these issues. (Julie M., supra, 69 Cal.App.4th at p. 50.)
"... [The childrens] reactions may serve as a basis for curtailing or limiting future visits. The minors counsel eloquently expressed the need of these children to `stability and to `some peace.
"That is why Danielle W. approved a visitation order which vested limited discretion in the county welfare agency to consider the childrens desires regarding visits with their mother. The court found that an order vesting discretion in the agency and the children meant `[i]n the context of this case ... the children should not be forced to visit with their mother against their will and in no way suggests that the minors are authorized to do more than express their desires in this regard. [Citation.] Danielle W. recognized that a childs aversion to visiting an abusive parent may be a `dominant factor in administering visitation, but it could not be the sole factor. [Citation.]
"At a minimum, the court should refashion its order to provide SSA with `broad "guidelines as to the prerequisites of visitation or any limitations or required circumstances." [Citation.] Such an order may assign the task of overseeing visitation to the SSA to `promptly respond to changing dynamics of the relationship between parent or guardian and child, which changes may dictate immediate increases or decreases in visitation or demand variations in the time, place and length of particular visits. [Citation.]
"In this regard, the court may appropriately rely upon an evaluation by treating therapists of the childrens emotional condition and evolving needs. [Citation.] That is because dependency courts `simply do not have the time and resources to constantly fine tune an order in response to the progress or lack thereof in the visitation arrangement, or in reaction to physical or psychological conduct which may threaten the childs well-being. [Citation.] But the ultimate supervision and control over this discretion must remain with the court, not social workers and therapists, and certainly not with the children. [Citations.]" (Julie M., supra, 69 Cal.App.4th at pp. 50-51, italics in original.)
In the instant case, appellant contends that counsel was prejudicially ineffective because she should have used the August 2006 status review hearing to challenge the visitation order as invalid and void under Julie M., and the court would have been obliged to reverse the order and restore appellants visitations with T.P. In contrast to Julie M., however, the juvenile court granted T.P.s petition to restrict visitations with appellant in January 2005, after reunification services had been terminated and when the focus of the case had shifted. Moreover, appellants argument is based on the false premise that a challenge to the January 2005 visitation order would have automatically resulted in resumption of visits with T.P. Even if appellants guardian ad litem and/or attorney raised a Julie M. challenge, the record strongly suggests that T.P.s attorney would have taken appropriate steps to modify T.P.s petition and request the court to simply refashion the visitation order to vest limited discretion for the visits with respondent and T.P., consistent with the valid orders issued in Danielle W. and Chantal S. Given the state of the evidence, the court would have likely granted such a motion.
In addition, T.P.s attorney could have simply rephrased the petition to request the court find that visitation would be detrimental to the minor and issue a no-contact order between T.P. and appellant, as the court already did with M.P. While the juvenile court is required to continue visitation after termination of reunification services, the court may curtail visitation if it determines visitation is detrimental to the child. As in Julie M., there is overwhelming evidence of the detrimental effect appellants visitations had on T.P. Appellant cites a passage in one of respondents reports that appellants visits with T.P. had slightly improved in quality as of January 2001, but fails to note the rest of the statement—that the improvement was due to "the childs security in her present placement than with any improvement the mother has made in regard to either her mental condition or parenting abilities," when T.P. was still with the prospective adoptive parents. As discussed ante, appellant repeatedly appeared for visits while experiencing delusions and hallucinations, and she was unable to control her behavior. Respondents reports reflect appellant continued to display such behavior during visits in 2002 and 2003, and T.P. was visibly uncomfortable. As of January 2005, T.P. "stated very clearly" to her attorney, her therapist, and the social worker that she did not want to visit with appellant. T.P. had become increasingly moody before visits and fearful of appellant, and she took her anger and frustration out on others after the visits. As of August 2005, appellant maintained telephone contact with the social worker but was "mostly non-coherent," and T.P. repeatedly said she did not want to visit appellant. T.P. told the CASA about her "strong feeling[s]" not to have contact with her family, and appeared uncomfortable talking about appellant or M.P. T.P. told the CASA that she was scared and afraid that appellant would try to get her back.
Given the overwhelming evidence of the detrimental effect appellants visits had on T.P., the juvenile court could have responded to a Julie M. challenge by issuing a no-contact order and finding that continued visitations would be detrimental to T.P. (See, e.g., In re S.H. (2003) 111 Cal.App.4th 310, 317-320.) Indeed, the record suggests the tactical reason appellants attorney may have declined to challenge the January 2005 visitation order pursuant to Julie M., was to avoid the inevitable motion for a no-contact order and a finding of detriment, whereas the existing order left open the possibility that T.P. might want to resume visits with appellant at some point.
Appellant next turns to T.P.s statements in the August 2006 social study report, about her interests in visiting with appellant and M.P. As set forth ante, the social worker reported that she visited T.P. in August 2006 and asked the child about M.P.:
"When asked, [T.P.] stated that she remembers her grandmother [M.P.]. When asked, she stated that she would like to visit her grandmother. [T.P.] stated that her grandmother buys her things. When asked if she would like to visit her grandmother if her grandmother did not buy her things, [T.P.] stated that she would not."
During another visit, the social worker asked T.P. if she wanted to see appellant:
"[T.P.] stated that she did want a visit with her mother. [T.P.] stated that her mother buys her things. At that time, [T.P.] was asked by her CASA ... if she would like to visit her mother if her mother did not buy her any thing and [T.P.] stated that she would not."
Appellant asserts counsel should have raised visitation and placement issues based on T.P.s statements that she was interested in visiting with appellant and M.P. Appellant suggests respondent placed a "`spin" on T.P.s statements, that her interest in visiting with M.P. and appellant was based upon the prospect of receiving gifts, and further posits that "if [T.P.] were as fearful of her mother as respondent and the CASA wishes this Court to believe, it is doubtful if her fears could be allayed merely by the presentation of a gift." Appellant asserts counsel should have requested a contested hearing and called the social worker and/or CASA to testify about T.P.s precise statements, presented expert testimony about reactive attachment disorder, and shown the importance of fostering a family attachment to the disturbed child.
"In addition, diligent investigation might have yielded positive evidence in the form of progress of one kind or another on the part of appellant that could have been presented at a contested section 366.3 hearing. Respondents assumption that no such evidence existed is merely speculation."
We decline to find trial counsel prejudicially ineffective based on appellants own speculation about what might have been happening with this case. T.P.s statements, as quoted in the reports, clearly conditioned future visits with appellant and M.P. on the belief that she would receive gifts. The record before this court is replete with evidence about T.P.s fear of visiting with and returning to live with appellant, and completely devoid of evidence that appellant has taken any steps to address her own severe and chronic mental illness which placed T.P. at risk.
Indeed, the record herein also suggests the reason for counsels failure to request any of the orders now proposed by appellant. "Reunification services are a benefit; a parent is not constitutionally entitled to services." (Nickolas F. v. Superior Court, supra, 144 Cal.App.4th at p. 118.) "`[C]ounsel is not required to make futile motions or to indulge in idle acts to appear competent. [Citation.]" (In re Merrick V., supra, 122 Cal.App.4th at p. 255; see also Nickolas F. v. Superior Court, supra, 144 Cal.App.4th at p. 118.) "Representation does not become deficient for failing to make meritless objections" (People v. Ochoa (1998) 19 Cal.4th 353, 463.) Reviewing courts will sustain ineffective assistance of counsel claims on appeal only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. (In re Merrick V., supra, 122 Cal.App.4th at p. 255.)
We do not discount the seriousness of T.P.s emotional problems and the possible negative impact of multiple foster placements, but these issues do not translate to the conclusion that T.P.s problems would not have occurred if the court had continued regular visitations between T.P., appellant, and/or M.P., or if the child had been returned to the custody of appellant and/or M.P., especially given appellants complete failure to comply with any aspect of the reunification plan. When the juvenile court terminated reunification services, appellants interests to reunify with T.P. were no longer paramount. (Stephanie M., supra, 7 Cal.4th at p. 317.) The right to parent is not absolute but must be balanced against the best interests of the children. (In re Angelia P. (1981) 28 Cal.3d 908, 916-917.)
"Expressions of love and concern do not equate to the day to day care and devotion the average parent expends on behalf of children. The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038, superseded by statute on another ground as stated in In re Eli F. (1989) 212 Cal.App.3d 228, 234.)
While T.P.s placement in foster care may not have been optimal, that does not necessarily mean that she should have been returned to her mothers care and custody, given her mothers complete refusal to comply with even the simplest terms of the reunification plan.
Finally, appellant argues counsel was ethically obliged to seek Mr. Meiers removal as her guardian ad litem because he never represented her interests in regaining custody of T.P., and she no longer needs a guardian to represent her. As with appellants other arguments, there is no evidence in this record to support such an assertion.
We note that if counsel had moved for modification of the existing visitation and custody orders based upon the existing record, she would have certainly failed to make the requisite prima facie showing. While the instant record fails to support any of appellants arguments about what counsel should have done in this case, counsel is not foreclosed from filing a section 388 petition for modification in the future should the facts and circumstances of this case truly change. The juvenile court may summarily deny the motion if the petition fails to make a prima facie showing (1) of a change of circumstances or new evidence requiring a changed order, and (2) the requested change would promote the best interests of the child. In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P., supra, 123 Cal.App.4th 181, 188-189.)
DISPOSITION
Appellants motion of November 7, 2006, to declare her notice of appeal properly filed is granted. The judgment (the orders entered on August 22, 2006, from the Welf. & Inst. Code, § 366.3 post-permanency review hearing) is affirmed.
We concur:
WISEMAN, J.
KANE, J.