Opinion
F083614
06-13-2022
In re D.M. et al., Persons Coming Under the Juvenile Court Law. v. DOUGLAS M., Defendant and Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County Nos. 19CEJ300167-2, 19CEJ300167-3, 19CEJ300167-5, 19CEJ300167-6, 19CEJ300167-7. Kim Nystrom-Geist, Judge.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DE SANTOS, J.
Douglas M. (father) appeals the order terminating his parental rights as to his five minor children, 14-year-old D.M., 11-year-old K.C.M., seven-year-old K.L.M., six-year-old K.B.M., and three-year-old K.A.M. (Welf. & Inst. Code, § 366.26). He makes one argument on appeal: the juvenile court erred by appointing a guardian ad litem for him shortly before the section 366.26 hearing. He contends insufficient evidence supported the finding of legal incompetence underlying the order. Finding any error to be clearly harmless, we affirm.
All further undesignated statutory references are to the Welfare and Institutions Code.
Joanna M., mother, separately appealed from the same order terminating her parental rights as to these children, as well as her other daughter, S.S. We consider her appeal in In re S.S. et al., F083672.
FACTUAL AND PROCEDURAL BACKGROUND
Petition, Detention, Jurisdiction, and Disposition
In May 2019, the Fresno County Department of Social Services (department) received a referral alleging general neglect when six-year-old M.M. (not subject to this proceeding) was found wandering alone near a busy street. M.M. and her siblings, then 11-year-old D.M., then eight-year-old K.C.M., then four-year-old K.L.M., then three-year-old K.B.M., and then 10-month-old K.A.M., were all in the care of their 14-year-old sister, S.S., in the motel room where they lived. Law enforcement responded and waited over an hour for the parents to return. When they did, mother reported it was only the second time she had left the children alone and that she home schooled the children. Law enforcement placed a hold on the children. The children reported to the investigating social worker they were left in S.S.'s care for many hours every day and sometimes the parents would not return home until late at night. They further reported that the parents engaged in domestic violence in their presence. The children were not enrolled in school and were vague about the level of instruction they received from mother, with S.S. reporting they had not had any instruction in the past year.
On May 9, 2019, the department filed a dependency petition on behalf of the children, alleging they had suffered or were at substantial risk of suffering serious physical harm or illness within the meaning of section 300, subdivision (b)(1) based on the parents' failure or inability to adequately supervise or protect the children, as well as domestic violence issues. Father was listed as the presumed father of D.M., K.C.M., M.M., K.L.M., K.B.M., and K.A.M. S.S.'s presumed father was Marcus S., whose whereabouts remained unknown throughout the duration of the proceedings. On May 16, 2019, the juvenile court ordered the children detained from the parents and ordered the parents to have weekly supervised visits.
Substance abuse issues were also alleged, but the juvenile court ultimately struck the allegations at the combined jurisdictional/dispositional hearing.
The parents missed several visits following the detention hearing. When they did visit, they were reported to engage in behaviors such as refusing to conclude visits, becoming angry and shouting when asked to comply with visitation rules, refusing to return the children to care providers following visits, acting in aggressive and threatening manners toward the social worker, and making allegations of physical abuse against the care providers, which were later deemed unfounded. Based on the parents' behavior, they were transitioned to therapeutic visits in August 2019.
A few days following removal from the parents, M.M. displayed behavioral issues, including violence toward herself and others. Because of her behaviors, M.M. was hospitalized on a section 5150 hold. Upon discharge, she was transported to a short-term residential therapeutic program (STRTP) home. In June 2019, following a visit with the parents, S.S. engaged in self-harm, also necessitating hospitalization on a section 5150 hold. Upon discharge, she was placed in a foster home. She later reported father was the reason for her self-harming thoughts and that she no longer wanted to visit with him. D.M. had significant delays in reading and writing. He underwent a mental health assessment and was recommended to participate in therapy. K.B.M. and K.A.M. both appeared to have developmental delays.
The parents did not participate in voluntary services and informed the department they would not do so unless ordered by the court. The parents maintained the children should not have been removed from their care.
At a combined jurisdictional/dispositional hearing conducted on September 9, 2019, the juvenile court sustained the petition, adjudged the children dependents, and ordered them removed from the parents' custody. The parents were each ordered to participate in reunification services, including parenting classes, a domestic violence assessment and recommended treatment, a substance abuse evaluation and recommended treatment, a mental health evaluation and recommended treatment, and random drug testing. In addition, father was ordered to complete psychological evaluations. Mother was ordered to have supervised visits with the children once per week, and father was ordered to have supervised visits once per month. Visits were suspended with S.S. because the court found they were detrimental.
Mother appealed the dispositional findings and orders arguing, among other things, that the court's jurisdictional true findings and findings underlying removal were supported by insufficient evidence. In In re J.M. (Aug. 24, 2020, F080123 [nonpub. opn.]), this court affirmed all findings and orders.
Reunification Period
Throughout the reunification period, according to the department's reports, the parents continued to engage in inappropriate behavior, including refusing to give the children back to their foster parents; harassing foster parents, resulting in foster parents giving up placement of the children as they were in fear of their safety; and showing up to the foster parents' homes and attempting to deceive them into letting them take the children. The parents openly spoke about the dependency case on YouTube channels and podcasts. They had disclosed foster parents' personal information and had attempted to disclose the social workers' personal information. Father continued to speak to the social worker in a threatening manner. Mother filed police reports against the social worker alleging he accepted money for the adoption of the children and accused him of sexually harassing her. The social worker obtained police reports indicating there had been several incidents of domestic violence between the parents since the initiation of the dependency case.
Visits following the disposition hearing continued to be therapeutic supervised visits which, in October 2019, transitioned into "Intensive Supervised Visits." The parents continued to miss many of the in-person visits. In March 2020, due to the COVID-19 pandemic, the visits began to take place virtually, and the parents attended visits more regularly. In May 2020, the parents' visits were reduced because of concerns during visitation and their lack of participation in the reunification services. In September 2020, M.M.'s therapist informed the social worker that M.M. appeared to "dysregulate after visitations" as evidenced by her "inability to regulate emotions, deescalate after emotional/behavioral outburst and maintain safety for self and caregivers." In October 2020, the court made a finding that visits with M.M. were detrimental and suspended visits between her and the parents. As of December 2020, mother and father had not progressed past intensive supervised visits. They were not visiting with S.S. nor M.M. due to detriment findings. Visitation narratives by Comprehensive Youth Services were provided to all parties through discovery.
The parents failed to participate in any of the department's referrals for reunification services. The parents continued to state the children were removed illegally and that the services ordered were not reflective of their need. In May 2020, however, mother informed the social worker she had participated in services on her own, out of pocket. The social worker determined mother had taken several assessments through a service provider unapproved by Fresno County, which resulted in recommendations for lengthy services in the areas of parenting, domestic violence, substance abuse, and mental health. Mother did not participate in any of the services recommended by that provider; rather, in September 2020, she provided certificates of completion from a different unapproved service provider stating she had completed eight hours of domestic violence education and 52 hours of a parenting class, and that father had completed four hours of an anger management class and eight hours of a parenting class.
A contested combined six-, 12-, and 18-month status review hearing was conducted on January 11, 2021. This was the first status review hearing and was so delayed in part because both mother and father were appointed new counsel frequently due to requests to withdraw by the attorneys. At the review hearing, the parents' reunification services were terminated. Visits with S.S. were to remain suspended; however, the court reinstated visits with M.M. A section 366.26 hearing was set.
Both parents were appointed counsel at the detention hearing on May 16, 2019. Subsequently, due to conflicts declared by their attorneys, mother was appointed new counsel on May 28, 2019, September 3, 2019, February 18, 2020, November 4, 2020, and May 5, 2021. Father was appointed new counsel on August 6, 2019, June 23, 2020 (as a result of a Marsden motion by father rather than a conflict declaration), November 4, 2020, and July 14, 2021.
Father sought an extraordinary writ from the order terminating his reunification services arguing the department failed to make reasonable efforts to assist him in reunifying with the children. In Douglas M. v. Superior Court (Apr. 21, 2021, F082255 [nonpub. opn.]), this court denied father's petition by written opinion, wherein this court concluded the juvenile court's finding that reasonable services were offered was supported by sufficient evidence.
Permanency Planning
The department's recommendation for a permanent plan was adoption and termination of parental rights for all children except for M.M., who the department opined was not adoptable. For M.M., the recommendation was foster care with a permanent plan of placement with a fit and willing relative.
D.M.'s care provider wished to adopt him, as well as K.C.M. and K.L.M., who were placed together in another home. D.M. reported that he "love[d] it" at his care provider's home and wanted her to adopt him. He reported she had given him what he had always wanted, an "actual family." He had begun refusing to visit with the parents in February 2021. He reported he had spent his whole life with his parents and know what they were like-father was abusive and mother "couldn't handle stuff." He reported the parents "haven't changed." K.C.M. reported she understood that "adoption is forever," and only wanted to be adopted if either S.S.'s or D.M.'s care providers' would be adopting her. K.C.M. and K.L.M.'s CASA reported that they had not "pined for their parents" nor requested in-person visits.
K.B.M. and K.A.M.'s care providers wished to adopt them. K.B.M. and K.A.M. called the care providers mommy and daddy and appeared comfortable and affectionate toward them. K.B.M. and K.A.M. rarely wanted to be in front of the camera for visits with the parents. They would say hi then "run off." K.B.M. and K.A.M.'s care providers reported they did not ask about their parents, but K.B.M. did mention being removed and recalled that the parents were unable to take care of him and only recalled negative memories. He had told the prospective parents he wanted to stay with them forever.
K.C.M., K.L.M., K.B.M., and K.A.M.'s CASA reported that visits with the parents observed in April 2021 were "chaotic and dysfunctional." K.B.M. and K.A.M. appeared "alarmed and overwhelmed" when the parents, K.C.M. and K.L.M. shouted out greetings to them. The CASA observed that the parents did not engage the children in conversation but talked only about themselves. K.C.M. and K.L.M. played during the visits and did not engage with the parents.
The social worker reported that during the visits he observed in June and July 2021, the parents were attentive and paid equal attention to each child. They told the children they loved and missed them and blew kisses. They asked the children questions and showed interest in their lives. The social worker nonetheless opined that the "permanency, safety, and continuity that a plan of adoption can provide outweighs the parent child relationship."
Guardian Ad Litem Proceedings
The section 366.26 hearing was originally set for May 5, 2021. It was continued, however, because mother's counsel had requested to withdraw, and mother was appointed new counsel. The hearing was then set for July 14, 2021. The hearing was further continued to October 12, 2021, due to father being appointed new counsel because his counsel had requested to be relieved due to a conflict. An interim review hearing was set for August 25, 2021.
At the August 25, 2021 hearing, at which both parents were present, the court stated it was considering appointing guardians ad litem for each parent because it appeared they were unable to assist counsel in a rational manner. In support of the court's statement, it gave a history of all the attorneys the parents had had who conflicted out of the case. The court noted the parents had a history of showing up to the children's placements unapproved and unannounced, leading care providers to give notice for placement to be changed.
The court noted, "Most commonly a request for guardian ad litem will come from counsel for the parent. Whatever it is that is occurring in the context of the attorney/client relationship is such that no attorney may have been on this case long enough to have made this request. That whatever … the parents are doing to confront their attorney or to cause the attorneys to conflict is not information that can be on the record. The Court cannot inquire of the attorney. But based on the history of the case, the parents' conduct regarding the social workers, the visitation agencies, the schools and care providers, the Court certainly has reason to believe that something is happening within the context of the attorney/client relationship such that the attorneys are not able to request a guardian ad litem."
The court went on to state "the case is at the permanency point, there are p[ro]spective adoptive parents who have been identified for the children, the children are wishing to move forward, the law requires that … that the matter be brought to a conclusion in a timely basis, that by the action of the parents the case is unable to proceed such that the children are being deprived of their opportunity to have timely hearings, the Court concludes that it may be expedient and necessary to appoint a guardian ad litem."
The court explained it would be trailing the hearing for a week but that it would first be advising the parents of the effects of the potential appointment. The court explained the appointment of a guardian ad litem was "a very serious step." The court informed the parents the appointment removed decision-making power from the parent and transferred it to the guardian. The court further explained, "Based on the case file, the history of this case, the constant delays caused by the parents, the clear actions of the parents that cannot be logically or rationally explained as set forth in the JV-180 response that I referred to today, it appears to this Court that the parents are unable to assist counsel in a rational manner in the conduct of a defense."
The parents had filed a section 388 petition requesting in-person visits. The department filed a response detailing incidents of the children's care providers requesting placement changes due to behavior by the parents including showing up at the care providers' homes unapproved and unannounced and engaging in harassing behaviors.
The court concluded by advising the parents they were not being asked whether they consented to the appointment that day but they would have the opportunity to consult with their attorneys before the conclusion of the hearing the following week. The court noted its comments were to be construed as notice of the reason the guardian ad litem was being considered, the consequences of that appointment, and the legal standard for appointment. The court advised the parents that at the second portion of the hearing occurring the following week, they would have the opportunity to be heard and would be allowed to make a statement. The court noted father, though his mic was muted, was shouting and "using adamant gestures toward the Court," engaging "in what can best be described as a rant." The court ordered the parents to be personally present at court for the second part of the hearing.
At the second portion of the hearing on September 2, 2021, the parents were not present. The parents checked in prior to the hearing but were unable to be located when the hearing began. Father's attorney requested an in camera hearing. In the in camera hearing, father's attorney requested the court appoint a guardian ad litem and informed the court she had not been able to contact father. She stated, "Due to the lack of communication and … my inability to communicate with him, I am asking for the Court to appoint a guardian ad litem." The court stated it would be appointing father a guardian ad litem with no further discussion. When back on the record in open court, the court announced its decision, stating it found "it is necessary for the reasons set forth on the record beginning on August 25th to appoint a guardian ad litem" for father. The court explained litigation control was removed from father and transferred to the guardian ad litem. Mother was also appointed a guardian ad litem following her attorney's request in open court.
Section 366.26 Hearing
The first day of the contested section 366.26 hearing was held on October 26, 2021. The department submitted on its reports and requested the court terminate parental rights and order adoption as a permanent plan for all children except M.M. For M.M., the department requested the court order a permanent plan of placement with a fit and willing relative. Minors' counsel stated she was in agreement with the department's recommendation. Prior to the hearing, father's counsel submitted a statement of contested issues, arguing the court should not terminate parental rights because the beneficial parent-child relationship exception and the sibling relationship exception applied.
Section 366.26, subdivision (c)(1) provides that if the court finds by clear and convincing evidence that a child is adoptable, it must terminate parental rights unless an enumerated exception applies. The court may decide not to terminate parental rights if it "finds a compelling reason for determining that termination would be detrimental to the child due to [circumstances where] [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship [(the beneficial parent-child relationship exception)]" (§ 366.26, subd. (c)(1)(B)(i)) or "[t]here would be substantial interference with a child's sibling relationship [(the sibling relationship exception)]" (id., subd. (c)(1)(B)(v)).
Mother's first witness was social worker Ryan Atendido. He supervised a visit on June 1, 2021, between mother, father, M.M., K.B.M. and K.A.M. He testified the visit went well. M.M. was excited to see the parents and K.B.M. and K.A.M. were on camera briefly then walked away. Atendido testified mother and father were attentive to the children, engaged, and showed interest in school and how the children were doing. D.M. had shared with Atendido that he had not spoken to his parents for over a year and was adamant he did not want to see them.
On cross-examination by father's attorney, Atendido testified father and the children are interactive with each other at visits. At sibling visits, the children are "very excited" to see one another. When asked whether the children want to continue seeing the parents and siblings, Atendido stated K.C.M. and K.L.M. wanted to see S.S., K.B.M. and K.A.M. more often. D.M. did not request additional visits with his siblings but wanted to continue seeing them. Atendido testified the care providers did "a great job" in making sure the siblings stayed in contact.
Mother also called father to testify. Father described his bond with the children prior to detention as "[f]or the most part great." He acted as the father figure and disciplinarian. He stated his children were his "whole life." He testified he had only missed one visit due to a scheduling issue but "[e]verything else has been the Department's mistake."
Father testified there was no reason for the children to be removed from mother and him. He testified the social worker kept S.S. from them and the same thing was happening with D.M. He testified the reason S.S. started self-harming after removal was because of the pain she was going through and the home she was in. He visited mostly with M.M., K.C.M., and K.L.M. because K.B.M. and K.A.M. were "hauled" off the screen at the beginning of every visit and not seen again for the duration of the visit. Father stated the children "constantly" expressed a desire to see their siblings more and asked to see father more as well.
Father testified that before removal, the family did everything together. They had family dinner together every night between 5:00 p.m. and 6:00 p.m. The children were homeschooled; father handled math and P.E., and mother taught all the other subjects. Everything was scheduled in their house, and the children participated in extracurricular sports like soccer, football, track, and running. Sports were organized through a home school association, through which the children also participated in enrichment classes in a classroom and attended social events with other children in the county. The family attended the enrichment activities every week and also had "Friday night movie night" every week. Father taught the children to lean on one another for support and be each other's strength.
Father continued his testimony on November 2, 2021, at which time father's attorney began her examination. Father testified it had been 19 months since he had seen the children in person and had not seen the youngest boys in months because the care providers did not log on for visits. He only visited with the girls and they stayed engaged the entire visit. He stated D.M. wanted to come home but did not go to visits anymore. Father loved seeing K.L.M. and K.C.M. According to father, K.L.M. used to be with father six hours a day every day, so she misses him; K.C.M. is sad, and father can tell she wants to come home, but they cannot talk about the case.
Father's attorney argued that the beneficial parent-child relationship exception and the sibling relationship exception applied and requested that the court order a permanent plan of legal guardianship.
The minors' attorney stated again she was in agreement with the department's recommendation. She stated that she had "no doubt" the parents and children loved each other, but "any benefit that the children would have received through maintaining that relationship … is far outweighed by benefits of adoption." She stated K.C.M. had wavered about whether she wanted to be adopted, but as of the outset of the hearing, she was "okay" with being adopted. Finally, minors' counsel advised that none of the siblings were claiming the sibling relationship exception applied.
The court delivered its ruling on November 8, 2021. The court noted "the parents' testimony was entirely inconsistent with the facts that have been established in this case and with the law of the case." The court found by clear and convincing evidence the children, with the exception of M.M., were adoptable and that adoption was the appropriate permanent plan for the other children.
As for the application of the beneficial parent-child relationship exception, the court noted that the parents had had their visits "greatly suspended or limited because of their action[s] in this case that posed a danger to the children" and that they had not demonstrated by a preponderance of the evidence they had maintained regular visitation and contact in a manner consistent with the court's orders and the children's needs. The court went on to say it was not aware of case law that requires the parents' attempts at visits to be consistent with the children's best interest and court orders and therefore would not "exclude the parents from the parental bond exception on the first prong [of the exception]."
The court went on to state the parents had not met their burden to show the benefit of the parental relationship outweighed the benefit of adoption. The court noted it "cannot make a finding that these parents even rise to the level of a friendly visitor. There is no credible evidence that continuing the relationship with the parents would outweigh the benefit and permanency of adoption for the children other than [M.M.]" The court stated, "all of the evidence, every decision by the trial court, both decisions by the 5th District Court of Appeal, every CASA report, all evidence before the Court, other than the parents' self-serving testimony, is that this was not an intact family of ten siblings that functioned well, where children were protected and safe."
The court also found the parents had not met their burden to prove the sibling relationship exception applied, noting that none of the children were asserting the exception applied.
As for M.M., the court followed the recommendation and ordered a permanent plan of placement with a fit and willing relative.
DISCUSSION
I. Timeliness
The department contends, as a threshold matter, that we are procedurally barred from considering father's appeal because his notice of appeal was untimely as to the order appointing the guardian ad litem. The order appointing the guardian ad litem was made September 2, 2021; the order terminating his parental rights was made November 8, 2021; and father's notice of appeal identifying the termination order was filed November 30, 2021. Thus, his notice of appeal was filed within the time to appealfrom the order terminating his parental rights but almost 30 days after the time to appeal from the order appointing the guardian ad litem had elapsed.
California Rules of Court, rule 8.406(a)(1) provides that in juvenile appeals, "a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed."
Father contends that because he did not have notice of his right to appeal the order appointing the guardian ad litem, we can properly consider it in his appeal from the order terminating his parental rights. We agree with father.
There is no indication on the record father was ever informed of his appellate rights with regard to the guardian ad litem order. Compounding this issue, father's attorney was in agreement with the appointment, and the guardian ad litem would not be expected to seek review of the order appointing her. (See In re Enrique G. (2006) 140 Cal.App.4th 676, 683.) Father raised the guardian ad litem issue at what appears to be the soonest opportunity, as it does not appear the court rendered any appealable orders between the time it appointed the guardian ad litem and the time it ordered termination of parental rights. We therefore conclude the issue regarding the guardian ad litem order is properly raised in father's timely appeal from the order terminating his parental rights. We will consider it on its merits.
II. Sufficiency of the Evidence Supporting the Order Appointing a Guardian Ad Litem for Father
"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; [citation].) The test is whether the parent has the capacity to understand the nature or consequences of the proceeding and to assist counsel in preparing the case. [Citations.] The effect of the guardian ad litem's appointment 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 (James F.).) Before appointing a guardian ad litem for the parent in a dependency case, the court must find by a preponderance of the evidence that the parent meets the requirements of either Probate Code section 1801 or Penal Code section 1367. (James F., at p. 916; In re Sara D. (2001) 87 Cal.App.4th 661, 667.)
Probate Code section 1801 provides in relevant part that a "conservator of the person may be appointed for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter"; a "conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence"; and a "limited conservator of the person or of the estate, or both, may be appointed for a developmentally disabled adult."
Penal Code section 1367 provides in relevant part that a "defendant is mentally incompetent … if, as a result of a mental health disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner."
Father contends the court erred by appointing a guardian ad litem for him because the evidence was insufficient to support the factual findings required to be made before such an appointment. Specifically, he contends the evidence did not support the juvenile court's finding he was incompetent and suggests the appointment of a guardian ad litem was an improper attempt at restraining a difficult parent. He does not assert any procedural due process violations.
Without determining whether the court's appointment was error, we conclude reversal is not necessary because any error was clearly harmless under the circumstances of the present case. The parties agree the alleged error is analyzed for prejudice (as opposed to structural error that is reversible per se). (See James F., supra, 42 Cal.4th at p. 918; In re Esmeralda S. (2008) 165 Cal.App.4th 84, 93 (Esmeralda S.).)
The question of whether the appropriate harmless error standard is harmless by clear and convincing evidence rather than harmless beyond a reasonable doubt is somewhat of an open question. (See James F., supra, 42 Cal.4th at p. 911, fn. 1.) We need not decide the issue here because we conclude the alleged error is harmless under any standard.
Father does not make any specific arguments that he suffered prejudice; he does not raise the issue of prejudice at all in his opening brief, and for the first time in his reply brief, he merely argues this court "can only guess what father might have done or suggested to his attorney if he could communicate with her directly to provide his input." Citing to In re Jessica G. (2001) 93 Cal.App.4th 1180 (Jessica G.), father asserts "error cannot be found to be harmless where a reviewing Court can only speculate what a parent might have done or suggested to his attorney if a [guardian ad litem] had not been interposed."
In the case father relies on, Jessica G., the appellate court concluded the appellant parent's due process rights were violated by the appointment of a guardian ad litem where the court did not explain to the parent what a guardian ad litem was or what effect it would have on the case, and made no inquiry on the record as to her competency. (Jessica G., supra, 93 Cal.App.4th at p. 1189.) In assessing prejudice, the Jessica G. court reasoned it could not find the error harmless beyond a reasonable doubt because the appellate court "do[es] not know what [the parent] might have done or suggested to her attorney if the guardian ad litem had not been interposed. She may have had supportive witnesses to testify about her performance at programs and in support of a continued relationship with her daughters, under section 366.26, subdivision (a)(1)(A); or she may have suggested that she finally had rid herself of [an abusive partner] and experienced an improvement in her psychological prospects as a result; and she may have been able to suggest other evidence or leads. Or she may not have been able to offer anything helpful. We simply do not know." (Ibid.)
The court in Esmeralda S. expressly disagreed with the Jessica G. court on its harmlessness analysis. (Esmeralda S., supra, 165 Cal.App.4th at pp. 95‒96.) The Esmeralda S. court explained "a finding that the juvenile court's error was prejudicial must be based on a claim of prejudice rather than speculation of possible prejudice- because it is simply inefficient to reverse a dependency judgment based upon speculation that an offending parent may have handled the case differently than his or her guardian ad litem. (See James F., supra, 42 Cal.4th at p. 916 [there is a strong public interest in prompt resolution of dependency cases]; see also People v. Gray (2005) 37 Cal.4th 168, 230 [speculation cannot support reversal of a judgment].)" (Esmeralda S., at pp. 95‒96; see In re Enrique G., supra, 140 Cal.App.4th at pp. 686‒687.) We agree with the reasoning in Esmeralda S. and respectfully disagree with the Jessica G. court for the same reasons.
We cannot conclude father can show prejudice resulting from the guardian ad litem appointment. The appointment occurred after reunification services had been terminated and shortly before the section 366.26 hearing. At this stage, the issues before the court are limited. The juvenile court must determine whether the child is adoptable. If the court finds the child is adoptable, it must terminate parental rights unless the parent proves by clear and convincing evidence a statutory exception applies. (§ 366.26.) In the present case, the section 366.26 hearing had been continued twice, and the department's reports had already been prepared. Thus, the potential issues to be contested were further narrowed by the particular circumstances of the case.
Father's counsel set a contested hearing on the issues of whether the beneficial parent-child relationship or sibling relationship exception applied. She examined the witnesses appropriately to advance these arguments and submitted oral argument at the conclusion of the hearing. Father testified at the hearing and was able to express his viewpoint that the children should have never been removed from his care, which was consistent with views he repeatedly expressed throughout the case. Father testified at length about his relationship with the children before and after the initiation of the proceedings and the children's relationships with one another. The guardian ad litem did not speak at the hearing.
Reviewing the record, it appears counsel advanced the only appropriate arguments. There is no evidence that any of the children were not adoptable, as they all had care providers who wished to adopt them, nor that any other statutory exception to termination of parental rights applied. Further, evidence that the beneficial parent-child relationship exception applied was relatively weak, which raises the question of what else father could have done to assist counsel in advancing this claim. D.M. had no desire to see his parents and wished to be adopted. K.B.M. and K.A.M. were very young when removed, bonded to their care providers, and did not care to meaningfully participate in visits with the parents; K.B.M. only recalled negative memories. K.C.M. and K.L.M. had the most positive visits with the parents out of all the other children but did not request to see them more and appeared to be doing well out of their care. The record demonstrates life before removal was characterized by neglect and instability and caused the older children not to want to continue their relationships with the parents. The parents' behavior throughout the case had a negative impact on the children's placements, and the parents consistently failed throughout the case to make any meaningful effort to reunify with the children, demonstrating they tended not to act in the children's best interest. This all amply supported a finding that any benefit of continuing the relationship would be outweighed by the stability and permanence of adoption. Similarly, it was unlikely the court would have applied the sibling relationship evidence in light of minors' counsel's argument that none of the children were requesting the court to apply it. We cannot see how the appointment of the guardian ad litem had any effect on the proceedings given the circumstances of the case at the time of the section 366.26 hearing, the fact that counsel advanced the appropriate arguments, and that father was able to testify freely.
Notably, father does not challenge the court's adoptability findings nor the court's finding that the beneficial parent-child relationship or sibling relationship exceptions did not apply. He does not raise any ineffective assistance of counsel claims and did not seek any writ relief to our knowledge based upon counsel's failure to investigate vital leads or present additional evidence or arguments to the court that would in any way have affected the outcome of the section 366.26 hearing.
We do not mean to suggest that an erroneous guardian ad litem appointment is never prejudicial when made at this stage in the proceedings, but rather conclude, after careful consideration of the entire record, that under the particular circumstances of the present case, it was not.
Father does not appeal from any orders regarding M.M. though we note there is no evidence the guardian ad litem appointment resulted in any prejudice to father with regard to the juvenile court's disposition in M.M.'s case, and the record supports the permanent plan selected for her was appropriate.
We conclude any error in appointing father a guardian ad litem was harmless.
DISPOSITION
The juvenile court's September 2, 2021 order appointing a guardian ad litem for father and any and all subsequent orders, including its November 8, 2021 order terminating parental rights, are affirmed.
WE CONCUR: SMITH, ACTING P. J., MEEHAN, J.