Opinion
E053183 Super.Ct.No. J228376
10-12-2011
In re K.B.-S., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.B.-S. et al., Defendants and Appellants.
Diana W. Prince, under appointment by the Court of Appeal, and Richard D. Pfeiffer for Defendant and Appellant Mother K.B.-S. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant Father K.S.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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OPINION
APPEAL from the Superior Court of San Bernardino County. Lily Sinfield, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Diana W. Prince, under appointment by the Court of Appeal, and Richard D. Pfeiffer for Defendant and Appellant Mother K.B.-S.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant Father K.S.
Jean-Rene Basle, County Counsel, and Dawn M. Messer and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
K.B.-S., the minor, was removed from his parents' custody shortly after his birth due to a dirty home (including numerous dogs and unsafe electrical wiring), as well as his father's mental illness, and the presence of a mentally ill paternal aunt in the home which posed a serious risk of danger to the child. The parents were given reunification services. Father did not participate in services, behaved with hostility toward the social worker, and intimidated the foster parents. Mother was dependent upon and intimidated by father. Services for the parents were terminated (at separate times), and a hearing to select and implement a permanent plan (Welf. & Inst. Code, § 366.26), was held. At the hearing, parental rights were terminated upon a finding that the minor was adoptable. Both parents appealed.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
On appeal, mother, joined by father, claims that the finding of adoptability is not supported by substantial evidence because the report prepared for the hearing did not explain the severity of the minor's various delays or his prognosis, and did not indicate whether the prospective adoptive parents had been fully informed of his long-term needs. Father argues separately that the failure to appoint a guardian ad litem rendered the juvenile court proceedings fundamentally unfair. We affirm.
BACKGROUND
In July 2009, mother gave birth to K.B.-S. Because of father's hostility towards hospital staff and mother during her hospitalization, an evaluation of the family home was requested as a condition of discharging the minor in the parents' care. Father's behavior in the hospital was verbally hostile, causing hospital staff to suspect he suffered from mental illness. The hospital refused to discharge the minor until the family home had been evaluated by the San Bernardino County Children and Family Services (CFS). The home evaluation revealed unsafe electrical wiring as well as numerous dogs and puppies, making the house smell of dog urine and feces. Additionally, the father's mentally ill (schizophrenic) sister was living with the parents, causing mother to fear for her safety as well as that of the minor. Although mother was originally discharged from the hospital with the minor to live in a shelter, she subsequently telephoned the father to pick her up, causing CFS to fear the child would be at risk from father's angry outbursts. The minor was thereafter detained in foster care.
A dependency petition was filed alleging that the minor was described under section 300, subdivision (b), as a result of the parents' inability to provide adequate shelter based on unsafe and unsanitary conditions of the home, father's inability to protect the minor due to mental illness, and father's failure to protect with respect to the risk posed by his sister's presence in the home. At the combined jurisdiction and disposition hearing, the court found the allegations of the petition to be true, declared the child to be a dependent, and removed custody of the child from the parents. The court ordered the parents to participate in the court-ordered reunification services and directed both parents to submit to psychological evaluations.
In January 2010, the foster parents informed the social worker that a Special Education Local Plan Area (SELPA) aid had seen the minor when attending to the needs of another child in the foster home, and expressed the opinion that the minor might have fetal alcohol syndrome. The court authorized the social worker to have the minor assessed. Subsequently, in the foster parents' application for de facto parent status, the foster parents informed the court that the minor's pediatrician had diagnosed him with scoliosis, for which the foster parents wanted to obtain physical therapy for the child.
In February 2010, the court granted the foster parents the right to make educational decisions on behalf of the minor but delayed ruling on the de facto parent application. In April, 2010, the court conducted the six-month review hearing. At the hearing, the court granted the foster parents' application for de facto parent status, terminated father's reunification services due to his failure to participate regularly in the court-ordered plan, but the reunification plan for mother was continued for another six months due to her moderate progress. The decision to terminate father's reunification services was based on the fact he was terminated from his anger management and parenting classes due to his disruptive and argumentative behavior, poor attitude, and his verbal threats against the agency. After being discharged from the first service provider, CFS provided additional referrals for services, but father never followed through.
The court also considered the father's psychological evaluation, which indicated he suffered from depressive disorder and a delusional disorder (persecutory type). Although the psychologist did not think father posed a direct threat to the child, the evaluator noted significant signs of paranoid ideation, and his psychological state raised questions about his ability to function.
The 12-month review hearing was held in November, 2010. Information presented to the court for that hearing indicated that mother was not attending services due to lack of transportation, despite being provided with bus passes, because she was unable to take the bus. Mother depended on father for transportation, but he could only take her to appointments if they coincided with his days off. Father reportedly locked the gate to their residence when he left for work, but mother did not recognize that his behavior was abusive or controlling. When the social worker attempted to find referrals for mother upon the closure of the Morongo Basin mental health facility, father informed her that mother did not need further services. Despite having completed the parenting class requirement, mother showed little knowledge of how to address the needs of a child.
The court also received information about the minor's status, including the fact he was showing minor delays, although his cognitive functions were progressing. The minor received services from SELPA, in association with the Inland Regional Center. The parents continued to visit with the minor regularly, but the parents' conduct during some visits caused the minor to become emotionally upset. At the conclusion of the 12-month review hearing, the court terminated mother's reunification services and scheduled a hearing to select and implement a permanent plan. The parents filed separate notices of intent to file a writ petition, but the petitions were dismissed in December 2010, after parents' counsel informed the court there were no issues to raise.
We take judicial notice of our file in K.S., et al. v. San Bernardino County Children and Family Services, E052320.
On March 22, 2011, the court conducted the hearing on the selection and implementation of a permanent plan for the minor. At the hearing, CFS presented evidence that the foster parents, in whose care the minor had been placed since October 2009, had expressed a strong desire to provide for and meet the child's needs on a permanent basis. The report presented for the section 366.26 hearing also showed that the child had a significant attachment to the adoptive family, and viewed the foster parents as parental figures.
While minor experienced minor delays in development, his cognitive and physical functioning were progressing. His developmental needs were being met in the current placement, and his caregivers, the adoptive parents, met all his academic and educational needs. The court found by clear and convincing evidence that the minor was likely to be adopted and terminated the parental rights of both parents. Both parents appealed.
DISCUSSION
a. The Finding of Adoptability is Supported by Substantial Evidence.
Mother, joined by father, points to information in the record showing the minor suffers from scoliosis, may have speech delays, as well as cognitive and physical delays. They argue that the record does not include adequate medical or developmental assessments, and that the finding of adoptability is not supported by substantial evidence. We disagree.
When reviewing a finding of adoptability, we apply the substantial evidence test. (In re R.C. (2008) 169 Cal.App.4th 486, 491.) We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or reweigh the evidence. (Ibid., citing In re B.D. (2008) 159 Cal.App.4th 1218, 1232.) The burden is the appellants to show there is insufficient evidence to support the finding or order. (In re R.C., at p. 491.)
In order to terminate parental rights, there must be clear and convincing evidence of the likelihood that the dependent child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1).) The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. (In re I.I. (2008) 168 Cal.App.4th 857, 870 [Fourth Dist., Div Two].) A child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
The fact that a child may have future problems does not preclude a finding that he or she is generally adoptable: Certainty of a child's future medical condition is not required before a court can find adoptability. (In re R.C., supra, 169 Cal.App.4th at p. 492 [prenatal exposure to substances and speech delays]; see also In re Helen W. (2007) 150 Cal.App.4th 71, 79 [children suffered various physical and developmental conditions].)
In some cases, a minor might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability, but is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child. (In re Jose C. (2010) 188 Cal.App.4th 147, 158.) When a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child. (In re Jose C., supra, citing In re Helen W., supra, 150 Cal.App.4th at p. 80.) The fact a prospective adoptive parent has expressed interest in adopting the minor is evidence the child is likely to be adopted within a reasonable time. (In re I.I., supra, 168 Cal.App.4th at p. 870; see also In re A.A. (2008) 167 Cal.App.4th 1292, 1312.) Case law does not require a juvenile court to find a dependent child "generally adoptable" before terminating parental rights. (In re A.A., at p. 1313.)
Here, the record supports the court's finding that the minor is adoptable. Although the 12-month review report and section 366.26 hearing report raise the possibility that the minor may have some minor delays, he was progressing. He was diagnosed with scoliosis in October 2009, and the developmental delay issues were brought to the social worker's attention by the prospective adoptive parents, who participated in his medical appointments and Regional Center evaluations. The prospective adoptive parents were thus quite familiar with any potential mental and physical health and developmental issues.
The issue of possible fetal alcohol syndrome was raised by the same visiting SELPA aid who recommended to the foster mother that the minor be assessed by the Regional Center. The mother's brief notes that there is no confirmation or refutation of this "diagnosis." However, the opinion of the SELPA aid is not a diagnosis.
At oral argument, mother's counsel urged us to hold that the statutorily required adoption assessment (§ 366.21, subd. (i)) must include detailed information about the minor's future medical or other problems. The statute currently requires an evaluation of the child's medical, developmental, scholastic, mental, and emotional status (§ 366.21, subd. (i)(1)(C)), which was provided in this case. To the extent the parents challenge the adequacy of the adoptability assessment, they have forfeited that issue by failing to object to the adequacy of the report in the lower court. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846, citing In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.)
The finding that the minor is adoptable is supported by substantial evidence.
b. The Absence of a Guardian ad Litem Does Not Require Reversal.
Father argues, for the first time on appeal, that the court should have appointed a guardian ad litem to act on his behalf prior to the jurisdictional/dispositional hearing because he was incompetent, and that the failure to do so constituted a violation of his constitutional rights to due process. We disagree.
Before addressing the merits, we must address CFS's claim that any error was forfeited by failing to raise the issue in the juvenile court. Case law tells us that if the parent is deemed incompetent and in need of a guardian ad litem, any error in not objecting to the failure to appoint one is not deemed waived. (In re A.C. (2008) 166 Cal.App.4th 146, 155-156; In re M.F. (2008) 161 Cal.App.4th 673, 682.) The reason for not applying the forfeiture rule relates to the fact that a parent in need of a guardian ad litem is hardly in a position to recognize and independently protest the failure to appoint one. (In re A.C., at p. 156.) Because the duty to appoint a guardian ad litem for a conservatee is not discretionary, the court in A.C. concluded the father did not waive his right to appeal by failing to raise the guardian ad litem issue in the juvenile court. (Id. at p. 155.)
Here, the court was not under a mandatory, sua sponte, duty to appoint a guardian ad litem because father was not a minor, he was not a person for whom a conservator had been appointed, and he was not shown to be incompetent, within the meaning of Code of Civil Procedure section 372, subdivision (a). We have not found any cases holding that a person who has not been shown to be incompetent may challenge the failure to appoint a guardian ad litem for the first time on appeal. Because father is presumed to be competent absent proof to the contrary (People v. Ramos (2004) 34 Cal.4th 494, 507 [ref. proceedings to determine competency]), and because the court was not required to appoint a guardian ad litem sua sponte, father bears the responsibility to protect his own interests by requesting the court to exercise its discretion in a manner favorable to him. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) The failure to do so results in a forfeiture. (In re R.C., supra, 169 Cal.App.4th at pp. 492-493.)
We apply the presumption of competence embodied in Penal Code section 1369, because the test for the need to appoint a guardian ad litem for a parent in a dependency case uses the standard of competency found in both Probate Code section 1801 and Penal Code section 1367. (See In re Sara D. (2001) 87 Cal.App.4th 661, 667; In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186.) The trial court must find incompetence by a preponderance of the evidence. (In re Sara D., at p. 667.)
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Even if we were to reach the merits of father's claim, there is no evidence in the record to support an inference that father was incompetent. In a dependency case, a parent who is mentally incompetent must appear by a guardian ad litem appointed by the court. (Code Civ. Proc. § 372, subd. (a).) The effect of the appointment of a guardian ad litem is to transfer direction and control of the litigation from the parent to the guardian ad litem, who may waive the parent's right to a contested hearing (In re James F. (2008) 42 Cal.4th 901, 910), or otherwise compromise the action or proceeding. (Code Civ. Proc., § 372, subd. (a).) The test is whether the parent has the capacity to understand the nature or consequences of the proceeding and to assist counsel in preparing the case. (In re James F., at p. 910, citing In re Jessica G., supra, 93 Cal.App.4th at p. 1186.)
Although the record shows father suffered from certain mental health problems, they did not rise to the level of a chronic and severe mental illness or, much less, incompetence. The record shows that father deemed ineligible for services at the San Bernardino County Behavioral Health clinic because he did not have a "chronic and severe mental illness." Father's unwillingness to cooperate with CFS does not mean he lacked the capacity to do so. Because the burden is on the appellant to demonstrate error, the lack of any evidence of incompetence in the record compels affirmance.
In addition, we question whether father would have consented to the appointment of a guardian ad litem if the court had raised the issue sua sponte. Once a guardian ad litem is appointed, the parent yields management and control of the litigation to the guardian ad litem, who may waive the parent's right to a contested hearing. (In re James F., supra, 42 Cal.4th at pp. 904, 911; In re Daniel S. (2004) 115 Cal.App.4th 903, 912; In re Sara D., supra, 87 Cal.App.4th at pp. 665-667.) The profile of father which emerges from this record is that of a controlling personality, who would not yield management and control of the litigation easily or voluntarily.
The record is replete with evidence that father was oppositional, argumentative, irrational, and impulsive. However, none of these characteristics affects his capacity to understand the nature of the proceedings and assist counsel in preparing the case. Being irritating is not a ground for appointment of a guardian ad litem, carrying with it the loss of ability to make important decisions regarding the management and control of the litigation. There is no evidence father met any definition of incompetence, despite his obvious psychological problems, to support the appointment of a guardian ad litem.
Moreover, the appointment of a guardian ad litem - especially at the jurisdictional or dispositional phase - could have derailed any attempt at reunification with the minor. Nothing in the statutory scheme suggests that a guardian ad litem's duties include guiding a parent through reunification services. To the contrary, Welfare and Institutions Code section 361.5, subdivision (b)(2), provides that reunification services need not be provided to a parent or guardian if he or she suffers from a mental disability that renders him or her incapable of utilizing those services. A finding of incompetence could have led inevitably to a determination that father would not benefit from services and would have eliminated any hope of reunification from the outset of the dependency. Unless a parent or guardian truly is incompetent, the appointment of a guardian ad litem may not be a good thing.
Because we find no error, we do not need to reach father's contention that the failure to appoint a guardian ad litem constituted a violation of his constitutional rights. Nevertheless, we point out that even if father had been incompetent, the failure to appoint a guardian ad litem did not violate father's due process rights because such a failure is not a jurisdictional error; instead, it is "merely irregular." (In re A.C., supra, 166 Cal.App.4th at p. 157.)
The lack of a finding of incompetence meant that father received the benefit of reunification services and the opportunity to correct the problems that led to the dependency. A finding of incompetence could have resulted in a by-pass of reunification. The failure to appoint a guardian ad litem was a benefit to father, not an error requiring reversal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Ramirez
P.J.
We concur:
Hollenhorst
J.
Richli
J.