Opinion
F087176
07-31-2024
In re Q.A., a Person Coming Under the Juvenile Court Law. v. L.A., Defendant and Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Ashley N. McGuire, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County No. 20CEJ300331-2. Kimberly Nystrom-Geist, Judge.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Ashley N. McGuire, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
L.A. (mother) has two children, A.A., now almost 17 years old and Q.A., now almost 10 years old. Only Q.A. is the subject of this appeal. His father is unknown and was never identified in this record.
Mother's parental rights were terminated at a Welfare and Institutions Code section 366.26 hearing, which concluded on January 2, 2024. Mother contends that the juvenile court erred in appointing a guardian ad litem (GAL) for her on June 22, 2023, at an in-camera hearing. The appointment was made subsequent to an initial section 366.26 selection and implementation hearing, at which time the children were placed into guardianship, but prior to the second section 366.26 hearing January 2, 2024, when mother's parental rights were terminated. Mother is requesting reversal of the order appointing the GAL and any orders following appointment, which would include the termination of her parental rights.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
We find no error and affirm.
STATEMENT OF THE FACTS AND CASE
On October 16, 2020, the Fresno County Department of Social Services (department) received a referral that mother was physically and emotionally abusing A.A. and that A.A. had run away from home. There were concerns mother was using controlled substances. Social workers met with A.A. later that day at the home of relatives. A.A. stated mother had slapped her and tried to hit her with a ping pong paddle. Her grandmother and aunt intervened, and she ran away from home. A.A. claimed she was emotionally abused, her mother called her nasty names and so on. She also stated that mother drank alcohol and used marijuana to excess and slept all day, requiring A.A.to care for Q.A.
When social workers contacted mother, she was angry and demanded to know A.A.'s whereabouts. She admitted some physical abuse and acknowledging forcing A.A. to be on her knees for hours at a time. She denied excessive drug usage. Mother indicated she thought A.A. was a liar and did not want her anymore. Mother admitted a minor history of criminal activity, mostly prostitution charges. A drug test showed mother was positive for cocaine. Mother replied that her partner must have transmitted it to her through sex.
Attempts were made to informally resolve the situation but proved fruitless as mother did not believe there were any problems. As a result, the department elected to remove the children and place them in foster care.
A section 300 petition was filed by the department on behalf of both children on October 26, 2020. It alleged mother was unable to properly care for her children due to her substance abuse (cocaine and marijuana) and her physical abuse of the children. At the detention hearing October 27, 2020, the juvenile court found a prima facie case to detain the children and place them in foster care. The jurisdiction hearing was held December 1, 2020, at which reports were filed and the juvenile court listened to argument and sustained the petition as filed. The disposition hearing was ultimately held on April 15, 2021. The juvenile court found that the children were dependents of the court, removed them from mother's legal/physical custody and placed them in foster care. Mother was granted reunification services and monitored visitation.
A six-month status review hearing was held on October 14, 2021, at which time the juvenile court determined mother's progress on her reunification plan was minimal to none, and all visits between mother and the children were suspended. Reunification services were terminated for both children and a section 366.26 permanency planning hearing set for February 3, 2022. Mother was advised she could seek appellate review (by way of a writ) of these orders, but no review was sought.
On February 25, 2022, the first section 366.26 permanency planning hearing was held. Legal guardianship was established for A.A. and dependency terminated for her. Guardianship was also established for Q.A. at the same hearing, but the dependency proceedings were continued as to him, and a review hearing scheduled for August 18, 2022. F.N. was named his legal guardian. Visitation for mother was set for one hour per month. Mother's progress to date in her reunification plan was found to be "none." No review of these orders was sought.
The department lost contact with mother shortly thereafter, but she later resurfaced after spending time in Phoenix, Arizona, where she was apparently arrested/convicted of prostitution. On June 9, 2023, mother filed a section 388 motion to vacate the guardianship for Q.A. and return him to her custody. This motion was summarily denied on June 12, 2023.
On June 22, 2023, a court hearing was held. The juvenile court first took up a Marsden motion for new counsel which was heard and denied. A hearing was then held to determine whether a GAL should be appointed for mother. This request was granted.
People v. Marsden (1970) 2 Cal.3d 118, 123-124.
In a report dated July 25, 2023, the legal guardian now advised that she wished to adopt Q.A. and that the child was agreeable to the adoption. Accordingly, the juvenile court found that guardianship was no longer the appropriate permanent plan and adoption was now the appropriate plan, and a section 366.26 permanency planning hearing set for November 14, 2023.
On November 14, 2023, mother filed a second 388 motion which was summarily denied the same day. Mother filed a notice of appeal that same day, purportedly challenging the termination of her parental rights.
The actual section 366.26 permanency planning hearing occurred on January 2, 2024. Mother was not present but was represented by her attorney and GAL. Mother counsel made a pro forma objection to the termination of parental rights. The GAL advised the juvenile court that he attempted to contact mother but was unable to do so and had nothing further to offer to the court. Q.A.'s counsel represented that Q.A., who was present via ZOOM, favored adoption; the juvenile court acknowledged Q.A.'s presence but did not question him. Q.A. thanked the court for finding him a "good parent." The juvenile court terminated mother's parental rights, finding that Q.A. was likely to be adopted within a reasonable time and that none of the exceptions for the preference of adoption as a permanent plan existed.
In a docket memo, dated January 5, 2024, this court determined that the notice of appeal dated November 14, 2023, was operable as a "premature notice of appeal" for the termination of parental rights. Mother filed a second notice of appeal on February 22, 2024, this time listing the section 366.26 permanency planning hearing.
DISCUSSION
Mother argues she did not consent to the appointment of a GAL. We are not persuaded.
When the juvenile dependency court has knowledge of a party's incompetence, it has an obligation to appoint a GAL. (In re A.C. (2008) 166 Cal.App.4th 146, 155.) "In a dependency case, a parent who is mentally incompetent must appear by a [GAL] appointed by the court." (In re James F. (2008) 42 Cal.4th 901, 910 (James F.).) "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." (Ibid.) "Stated another way, '[a] person may be found incompetent if the person was either incapable of understanding the nature and purpose of the proceeding or unable to assist counsel in a rational manner.'" (In re Samuel A. (2021) 69 Cal.App.5th 67, 78.)
"Before appointing a [GAL] for a parent in a dependency proceeding, the juvenile court must hold an informal hearing at which the parent has an opportunity to be heard. [Citation.] The court or counsel should explain to the parent the purpose of the [GAL] and the grounds for believing that the parent is mentally incompetent. [Citation.] If the parent consents to the appointment, the parent's due process rights are satisfied. [Citation.] A parent who does not consent must be given an opportunity to persuade the court that appointment of a [GAL] is not required, and the juvenile court should make an inquiry sufficient to satisfy itself that the parent is, or is not, competent." (James F., supra, 42 Cal.4th at pp. 910-911; accord, In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186.)
Mother argues that she did not consent to the appointment of a GAL, and that "respondent should not even attempt to argue it." Our reading of the record differs from mother's assertion.
At the June 22, 2023, in-camera hearing on the issue of appointing a GAL, mother's counsel explained that she had spoken to mother several times and that mother had difficulty understanding where her case stood - that mother was under the impression she was still under orders from January 2021, where the court required her to take care of her criminal case and then return to engage in reunification. Counsel stated that mother "frequently got frustrated" with counsel and "hangs up." Counsel stated she was unable to help mother understand, and appointment of a GAL was "imperative" to assist mother "understand where we are now and allow her to also provide assistance." Counsel stated mother was not able to assist her, direct her and make litigation decisions without a GAL.
The GAL was asked by the juvenile court to "explain a little bit about [his] approach when [he] serve[s] as [GAL]." The GAL stated that he gets to know the client and sits down with the client to make sure the client understands the procedures and "what is going on in their case." The GAL explained that he was available 24 hours by phone and follows up. If the GAL received any reports or new evidence, he would talk with the client and set up meetings with the department.
The GAL explained that, in making decisions about the case, he would first speak with counsel to see what they are suggesting and then explain and discuss that with the client. The GAL stated he would "take the client's position" if possible, making every attempt to support self-direction for the client. If the client is not able to make a decision, the GAL then directs counsel based on his perception and understanding of the client's best interest.
The juvenile court then questioned mother and asked if she had spoken to counsel and the GAL. Mother stated she just met the GAL that day and had spoken to counsel that day about having a GAL. The juvenile court then asked mother whether she felt the appointment of a GAL would be helpful to her. Mother responded, "In a way. Actually, yes, but no . . . I understand you guys don't understand me . . . but I'm doing my best by the Courts to do everything I need to get my children back." After redirecting mother, the juvenile court stated, "So separate from whatever legal goal you may have, do you feel it would be helpful to you to have a [GAL] appointed?" Mother replied, "If he is willing to help me in my case with my son, yes. But if not, no." When she was asked if she understood what counsel was telling her, she replied that she did. When asked if she understood the distinction between her criminal case and what she was told a couple of years previous, she said she did, but also that she had a lawsuit coming up based on "fake evidence, fake documentation, no reports on why my daughter is in the system, and nothing on me."
The juvenile court asked mother to explain a bit more about the "lawsuit." Mother then said:
"Lawsuit, because you guys are taking my parent rights from me. I'm complying, and you guys are not understanding that. You guys are going totally against me. You're stripping me from my children. I cannot see them. I cannot be with them. It's been too long. I keep continuing this over and over again. Your Honor, my daughter ran away. They took my son right after that. I'm looking out for my daughter and they took my son. I'm a single mom who's looking after my mother who is disabled. [¶]
"What I mean by 'lawsuit' is I'm tired of going through this and it's giving me mentally and physical - just getting emotional with this whole thing all behind something that didn't happen. And there is no right, correct evidence in this case that proves anything that is right. But I strongly - I'm strongly - I told her on the phone, I'm strongly going with the lawsuit and if I have to go public, I will. And I'm announcing that now because this cherade [sic] is done. I'm done with it. I want my babies back. I'm missing out on being a mother because of something I didn't do."
After explaining to mother that the current proceedings were strictly confidential and not public, the juvenile court explained that counsel could give mother options, but those options were limited by law. When asked if mother was able to provide counsel with the direction based on options allowed under the law, mother stated, "Yes." When asked if she had any objection to appointment of the GAL, mother stated, "No." When asked if she consented to the GAL being appointed, mother stated, "I'm not sure because I just met him." The juvenile court then explained that the GAL (Mr. Fearnside) frequently served as a GAL in many cases for many parents and that his role was to attempt to "understand what the parent wants and to make directions that are consistent with the parent's request and only to make other directions to the attorney if the parent is not able to do so. And not being able to do so would include not acting consistent with the law." The juvenile court then asked mother if she had anything else she wanted to say, and she responded, "Nope."
The juvenile court then appointed the GAL stating:
"The Court does find at this time that [mother] is not able to participate adequately in directing her attorney based on the legal options available. That she is having difficulty understanding the legal posture of the case, such that her counsel cannot bridge the gap. There are decisions that need to be made based on the legal options of the case which may not include, at this point of the case, options that the mother had early on in the case. I do find it necessary and expedient to appoint a [GAL], understanding that while the [GAL] does have broad authority under the law, it has been this Court's experience - in watching Mr. Fearnside for a number of years, I have yet to see him interfere with the parent's self-direction. I have seen him supportive of parents and seeing that his assistance is often critical in allowing the active participation of the parent."
The juvenile court concluded by appointing the GAL, stating "Mother has not objected, has indicated she has no objection to the appointment of the [GAL]," and advised mother that she had a right to review of the appointment.
During the in-camera hearing, mother was given multiple opportunities to object to the appointment of the GAL. While mother's responses to request for consent were probing for more information to make a proper decision, we do not construe these responses as denying or being opposed to the appointment of the GAL. Considering the entire record of the in-camera hearing, substantial evidence supports the juvenile court's determination that mother gave her consent for the appointment of the GAL.
Mother makes the additional argument that the juvenile court erred in appointing a GAL because she understood everything her attorney was telling her and never exhibited signs of mental or emotional impairment. "If the court appoints a [GAL] without the parent's consent, the record must contain substantial evidence of the parent's incompetence." (James F, supra, 42 Cal.4th at pp. 910-911.) However, "If the parent consents to the appointment, the parent's due process rights are satisfied." (Ibid.) Because we find mother gave her consent, we need not address this issue further. Nor do we need to address the parties' arguments about prejudice.
DISPOSITION
The orders of the juvenile court are affirmed.
[*]Before Detjen, Acting P. J., Franson, J. and Pena, J.