Opinion
A161819
11-19-2021
In re M.H. et al., Persons Coming Under the Juvenile Court Law. v. R.T., Defendant and Appellant. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Humboldt County Super. Ct. Nos. JV2000120, JV2000121, JV2000122, JV2000142
MILLER, J.
In these dependency proceedings, R.T. (Mother) appeals from disposition orders removing her four children from her care and ordering reunification services. Mother argues that the juvenile court violated her due process rights when it accepted her submission to jurisdiction with respect to negotiated petitions and when it appointed a guardian ad litem to represent her several weeks later. She argues that we must reverse the juvenile court's jurisdictional and dispositional orders and the appointment of a guardian ad litem.
We agree with Mother that the juvenile court made errors in violation of her due process rights. However, we will affirm the challenged orders because Mother fails to show prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises from disposition orders pertaining to Mother's four children: M.H. (now age 16), E.H. (age 13), S.T. (age 2), and K.T. (age 1).We refer to the four children collectively as "Minors." Minors' fathers are not parties to this appeal.
The superior court case numbers ending in 120, 121, 122 and 142 pertain to Minors M.H., E.H., S.T., and K.T., respectively.
The alleged father of the two older children, M.H. and E.H., was not involved in the dependency proceedings. Facts pertaining to J.M., the presumed father of S.T. and K.T., are discussed only insofar as they are relevant to Mother's appeal.
A. Initial Petitions on Behalf of M.H., E.H., and S.T.
On August 17, 2020, the Humboldt County Department of Health and Human Services (Department) filed petitions alleging that M.H., E.H., and S.T. came within the jurisdiction of the juvenile court under section 300, subdivisions (b)(1) and (c) of the Welfare and Institutions Code. With respect to subdivision (b)(1) (failure to protect), the Department alleged that Mother's failure to protect the children from the physical violence in her relationship with S.T.'s father, J.M., presented a risk of physical harm to them. With respect to subdivision (c) (serious emotional damage), the Department alleged that Mother's failure to protect the children from physical violence in the home placed them at risk of serious emotional damage.
Undesignated statutory references are to the Welfare and Institutions Code. References to rules are to the California Rules of Court.
The children were not detained. Initial hearings on the petitions were scheduled for September 3, 2020.
According to the reports filed by the Department in support of the petitions, several months earlier, in November 2019, the Department received a referral alleging physical abuse of M.H. and emotional abuse of M.H., E.H., and S.T., which led to an investigation and the Department's determination that M.H. had self-harmed; E.H. had thought of self-harm; there had been violence in the home; and Mother had in the past seemed to be overwhelmed and had threatened to kill herself. A voluntary family maintenance case was opened in about December 2019, and remained open at the time of the report.
The November 2019 referral was not the first concerning Mother and her children. The Department's report included details of multiple referrals and investigations dating back to 2009 (when M.H. was three years old and E.H. was under a year old) in which the allegations included emotional and physical abuse and general neglect.
Another referral was received in April 2020, alleging emotional abuse of M.H. and E.H. and general neglect of M.H., E.H., and S.T. The Department reported that during the investigation there were several contacts with Mother, who was about eight months pregnant and appeared to be stressed. She had made comments that led people to have concern for her mental health and physical safety. The Department continued to work with the family to de-escalate the conflict in the home, which included domestic violence between Mother and J.M., and physical conflict between Mother and M.H. In July, Mother gave birth to K.T. Later that month, J.M. was arrested for domestic violence after head-butting Mother.
Subsequent dates are in 2020 unless otherwise stated.
The social worker reported on an August 10 home visit with Mother, M.H., S.T., and K.T. At that visit, S.T. was not appropriately dressed, her diaper was full of urine, and she was dirty, but seemed healthy. The baby, K.T., however, appeared clean and it seemed Mother was taking care of her appropriately. Also on August 10, it was reported to the Department that Mother posted threats about killing herself. Law enforcement was called and determined she did not meet the criteria for an involuntary hold. Mother was also reported to be asking for J.M., and to have said she should leave her children in foster care to look for him, despite knowing that there was a criminal restraining order between her and J.M.
At the initial hearing on the petitions, held by videoconference on September 3, Mother entered a general denial to the allegations. The attorney appointed to represent the three children requested a detention hearing, and the court scheduled that hearing for the next day. At the September 4 hearing, the request for detention was withdrawn on the basis of stipulations that the social worker would assess the Mother's situation with the children and identify emergency placement. The children were to remain with Mother, and a contested jurisdiction hearing was scheduled for September 28 but was later continued.
Because of the COVID-19 pandemic, all the hearings described in this opinion were conducted by videoconference.
B. All Minors Are Detained
Between August 17, the date of the Department's reports in support of the petitions, and the September 4 hearing, the Department received two additional referrals about the family. On August 25, the Department received a report that M.H. had bruises on her face and said that Mother had been hitting her. On September 3, the Department received a report of emotional abuse and general neglect of all four Minors; including that Mother threatened suicide multiple times with Minors in her car.
Then, on September 25, the Department received a referral of caretaker absence. It was reported that M.H. and E.H. (the two oldest children) were riding in Mother's car and got into a fight. Mother pulled off the road, told M.H. and E.H. that she did not want them to be in the family any longer, made them get out of the car, and drove away. The children texted a friend, whose mother came to get them about an hour later. Social workers met with M.H and E.H. at the friend's home and tried to contact Mother; when they eventually reached Mother, she refused to speak with them. The social workers took M.H. and E.H. into protective custody. M.H. ran away rather than go with the social workers, and E.H. was placed in a local foster home.
Allegedly, all four Minors were in the car when Mother and M.H. had an argument. Mother told M.H. to leave the vehicle, and E.H., saying she was sticking up for her sister, also got out of the vehicle.
M.H. eventually joined E.H. in the court-ordered placement.
A child and family team meeting was held by videoconference on September 28 to determine whether a safety plan could be made with Mother to return M.H. and E.H. to her care. Mother yelled at the meeting and expressed her frustrations with the Department, but would not engage or even tell the social worker where she was. Mother said she did not want the Department involved with her family, and she refused to bring S.T. and K.T. (who had been in the car with her when she drove away from the two older children) to the office or tell the social worker where S.T. and K.T. were. The Department sought and received a protective custody warrant for S.T. and K.T., who were detained on that same day.
In the following days, the Department filed first amended petitions under section 300 on behalf of M.H., E.H. and S.T., and an original petition on behalf of K.T., seeking to detain them from Mother. The allegations were substantially the same as in the previous petitions, but also included allegations that Mother had left M.H. and E.H. by the side of the road with no safety plan in place for their care.
The juvenile court ordered Minors detained, and the matters were set for contested jurisdiction hearings.
C. Jurisdiction Hearing
A jurisdiction hearing was held on October 28 as to all four Minors, before the Honorable Joyce D. Hinrichs. In advance of the hearing, the Department submitted reports that described in detail the events leading to the Department opening a voluntary maintenance case in December 2019 and subsequent incidents that occurred through August 2020. The reports also included witness statements from five social workers and a social worker supervisor who were involved in the matter from September 3 through mid-October.
Mother and her counsel were present at the jurisdiction hearing. At the outset of the hearing, the Department confirmed that the parties had reached an agreement as to amended allegations for the section 300 petitions, and stated that amended petitions would be filed after the hearing. The court received the reports in evidence and noted that there had been a stipulation as to jurisdiction. The court further noted that Mother had agreed to a psychological evaluation, and stated, "While the Court can't order the mother to do anything at this time, I'm going to order the Department to provide the evaluation as soon as practical, and that would require Mom cooperating with the Department to set up that evaluation. And then some of the timing will depend on the ability of the psychologist to do that evaluation. But [I] understand Mom wants that done at the earliest possible time and [I'm] asking the Department to accommodate that."
During the hearing the following exchange concerning amendments to the petitions took place between the court and Mother's counsel, Jhette Diamond:
"THE COURT: Ms. Diamond, does your client agree to the negotiated language in this matter?
"MS. DIAMOND: Yes, Your Honor. I've gone over this language and provided it to her in an e-mail. We've gone over it at length. I also went over the terms of the JV-190 with her. Although I don't have a signature on hand, I will provide a copy to the Court following this hearing. She understands her rights in this matter and is waiving those in exchange for the amended language as agreed upon.
Judicial Council form JV-190 is entitled "Waiver of Rights - Juvenile Dependency." Rule 5.682(d) provides that a parent who submits to a jurisdictional determination in writing must complete form JV-190, and that the form must be submitted to the court, but there is no signed form JV-190 in the record before us.
"THE COURT: All right. So, you have explained and discussed with your client the rights and consequences of submitting on this negotiated language. Is that correct? . . .
"MS. DIAMOND: That is correct, Your Honor. And she understands those rights and is waiving them today."
The court accepted the negotiated language, which had apparently been provided to it in an email; directed the Department to file the amended petitions with the negotiated language; and directed Mother's counsel to file form JV-190. The court then sustained the petitions as amended, announced its findings and orders and set the disposition hearing for November 12.
The amended petitions filed by the Department after the jurisdiction hearing, alleged that M.H. and E.H. came within subdivisions (b)(1) and (c) of section 300 and that S.T. and K.T. came within subdivision (b)(1).
As to S.T. and K.T., the petitions alleged with respect to subdivision (b)(1) that the relationship between Mother and J.M., included domestic violence; that there had been multiple contacts with the parents over the past two years which included yelling in the presence of the children; that J.M. had been arrested after an incident of physical domestic violence that resulted in injuries to Mother's face; that Mother had not demonstrated the ability to parent and protect the children from the violence in the home despite months of voluntary services; that Mother continued to seek J.M.'s return to the home; that stressful situations involving arguing and yelling have affected the children; and that the presence of physical violence in the home presented a risk of physical harm to the children.
The petition on behalf of M.H. and E.H. included the same allegations, some pertaining to subdivision (b)(1) and others to subdivision (c). In addition, the petition alleged as to subdivision (c) that M.H. and Mother engaged in verbal and physical altercations, including incidents of physical fighting that resulted in injuries to Mother; that M.H. had episodes of cutting her body to deal with the situation in the home and had talked about suicide; that E.H. had thought about harming herself; that on more than one occasion Mother threatened self-harm in front of M.H. and E.H. and that Mother's inability to parent placed M.H. and E.H. at risk of serious emotional damage.
D. Initial Disposition Hearing
The Department prepared disposition reports in advance of the scheduled November 12 disposition hearing.
The Department reported that Mother had sometimes shown that she wants to work with the Department, but "at other times she has shown that she is very mentally unstable; she has been aggressive verbally at visits and with social workers. She has significant trouble controlling her anger outbursts and seems unwilling to control her actions when upset with others. She continues to have an unrealistic demand for a reunification with [J.M.] instead of focusing on reunifying with her children."
According to the Department, Mother verbally abused M.H. and E.H. by text messages. She threatened M.H. with giving her up permanently if she did not retract statements she made about Mother. Mother repeatedly told the social worker that she wanted to resume a relationship with J.M. Although Mother informed the social worker that she wanted to reunify with Minors, she also told the social worker she did not want to open her home to M.H. or E.H. until they changed their behaviors and admitted their wrongdoing. Mother wanted both of them to get jobs to pay her back for everything she had provided for them and anything they had broken in the home.
In its discussion of Mother's visits with Minors, the Department reported that Mother was inappropriate in phone communication with M.H. and E.H., who became so upset that they blocked Mother from their phones and said they did not want to visit with Mother. At a later visit with all Minors, Mother said inappropriate things, such as asking M.H. and E.H. why they were doing this to her, and telling them that the family's situation was caused by J.M.'s illness and that she did not deserve this. During a phone conversation between Mother and E.H., E.H. was pounding her head against the wall because of what Mother was saying to her. Mother told M.H. and E.H. that J.M. needed to come home and make the family right again; and that J.M. was crazy and should be held accountable.
The Department reported that Mother's moods were inconsistent in her visits with S.T. and K.T. During a well-child check-up for K.T. in early November, Mother became angry and abusive while filling out paperwork for the visit, and accused the caregiver of feeding K.T. poison and claimed that K.T. was being abused and cried all day every day because she was in pain. When the social worker reported that the caregiver said the baby was relatively calm and easily soothed aside from being usually gassy, Mother yelled that the social worker was a liar. Mother continued to vent her anger while holding K.T., making accusations about the social worker, M.H. and J.M., and raising her voice despite repeated requests to focus on the medical appointment. The child cried through most of the visit, escalating her cries as the visit continued. The department noted that Mother's anger and abuse made it impossible to provide medical information to the doctor, which was harmful to the child.
The Department recommended the court find that Minors be removed from Mother's care because of the domestic violence between Mother and J.M. in Minors' presence, as well as (for M.H. and E.H.) the physical violence between Mother and M.H. and the emotional abuse M.H. and E.H. were suffering, and (for S.T. and K.T.) Mother's failure to adequately parent them and protect them from stressful situations of arguing and yelling. The Department recommended the provision of reunification services to Mother and also recommended that visitation be found detrimental and that visitation be suspended until Mother stabilized her mental health and behaviors.
At the November 12 hearing, Mother's counsel reported that Mother did not agree with the Department's recommendations and asked that the matter be set for contest. Mother's counsel also asked that the psychological evaluation of Mother be completed as soon as possible, preferably before the contested hearing. Based on reports of Mother's recent behavior in the presence of the children, Minors' counsel asked that the court make a temporary finding that visits between Mother and Minors were detrimental, pending litigation of the issue at a future hearing. The Department joined in Minors' counsel's request.
The court set a hearing on detriment for December 2 and a contested disposition hearing for December 21. The Department was to coordinate and schedule the psychological evaluation as soon as possible, and visitation between Mother and Minors was temporarily suspended.
E. December 2, 2020 Hearing and Appointment of Guardian ad Litem
At the December 2 hearing, Mother's counsel informed the court (the Honorable John T. Feeney) that Mother had requested a Marsden hearing and that depending on the outcome of the hearing, a hearing would be needed as to the appointment of a guardian ad litem for Mother.
The principles of People v. Marsden (1970) 2 Cal.3d 118 apply in dependency proceedings. (In re Samuel A. (2021) 69 Cal.App.5th 67, 73, fn. 3 (Samuel A.).)
A closed hearing followed. The court heard first from Mother, and then from Mother's counsel on the Marsden motion. In the course of arguing the Marsden issues, Mother's counsel stated that she had very recently become concerned about Mother's "ability and competence to understand these proceedings, as well as assist me in these proceedings." Counsel explained the basis for her concern at some length.
The court denied the Marsden motion. Then, before the closed hearing was concluded, Mother's counsel asked whether the court would proceed on the issue of appointing a guardian ad litem. The court agreed to do so, and appointed Ron Gilleo as guardian ad litem.
When the full hearing resumed, the court informed the parties of the decisions it had reached. Minors' counsel asked for a brief continuance of the detriment hearing. In addition, and on the basis of the appointment of a guardian ad litem of Mother, Minors' counsel asked that Mother's educational rights as to all the children be limited until the disposition hearing. She asked that the substitute caregiver be designated as the holder of educational rights for M.H. and E.H. and stated that the father of S.T. and K.T. could still make decisions for them. Mother's counsel asked the court to defer any changes in orders regarding educational rights until disposition, noting that to her knowledge no educational decisions had to be made before the disposition hearing, and stated that the report from the psychological evaluation, which she had not reviewed, could be relevant to the court's decision as to whether Mother was "capable of weighing in on those types of decisions." The court granted Minors' counsel's request with respect to educational rights; continued the detriment hearing to December 21 to coincide with the disposition hearing; and authorized the Department to reinstate visitation between Mother and Minors.
F. December 21, 2020 Hearing
In advance of the December 21 hearing, the Department submitted two addenda to the disposition report for S.T. and K.T. The first contained the report of Mother's examination by psychologist Kevin Kelly. The second provided information from the Department about Mother's efforts since the November 12 hearing.
Dr. Kelly determined that Mother exhibited symptoms of moderate severity on the anxiety-depression spectrum. He deferred a diagnosis of personality disorder because Mother's "strong traits of Obsessive-Compulsive character style with aspects of Dependent Personality . . . might be confounded with traits of Anxiety-Depression." He opined that the Department was "right to be concerned about [Mother] and to focus on the significance of having [Mother] recognize the importance of treatment for depression in order to be an effective and supporting parent to her children." Mother did not require hospitalization and was not psychotic, but Dr. Kelly recommended that Mother's depression, for which she was currently taking an antidepressant that had been prescribed for postpartum depression, be treated with continued medication and with counseling. In particular, he recommended that Mother not talk with her children without the assistance of professional counseling; that she engage in counseling with her children to discuss the effects of her depression on them; that she not talk with her children about the effects she believes their fathers have on them; and that she not talk with her children about herself "until she has experienced greater lifting of her angry and depressed outlook." Dr. Kelly expected that Mother would eventually be able to recover and demonstrate her ability to meet the children's needs, and also stated that he anticipated Mother would be "challenging" to work with, in part because of the "rigidity, stubbornness, and lack of empathy" that accompany the dependent personality traits underlying Mother's more acute and obvious depressive traits. He opined that if not addressed, Mother's anxiety, depression and frustration at other peoples' failure to meet her expectations would likely persist, leaving her angry and possibly prone to episodes of violent acting out toward others or toward self-harm.
According to the Department's update to the disposition report, the social worker found it difficult to work with Mother to schedule the psychological evaluation, and once the evaluation had been received, the social worker supervisor, who planned to review it with Mother, "could not, due to [Mother's] elevated and escalated behaviors." Mother refused the Department's efforts to connect her with an outside therapist to review the evaluation, and refused to attend therapy or any mental health services. Further, she was unable to control her anger during phone conversations with the social worker, which at times required the social worker to end the calls. As of mid-December, Mother continued to refuse all services, and would not complete any of her case plan goals. The Department continued to recommend that visitation between Mother and the children be suspended until Mother stabilized her mental health and behaviors.
At the disposition hearing, the juvenile court (the Honorable Joyce D. Hinrichs) admitted into evidence the Department's disposition and addendum reports. The court heard witness testimony from one of the social workers and admitted into evidence two exhibits offered by Mother in which the social worker reported on mid-October contacts with the family. In one, the social worker recounted volatility, outbursts, and violent behavior by M.H.; in the other the social worker recounted a medical check-up for K.T. at which Mother exhibited exemplary behavior.
Mother objected to the Department's recommended findings and orders, and requested that the children be returned to her care or that visits restart immediately. The Department requested reunification services for mother, a detriment finding as to visits with the children, and an interim hearing in 30 days to evaluate Mother's engagement in services and determine whether visits could recommence. Minors' counsel asked the court to follow the Department's recommendations.
After hearing argument from all counsel, the court expressed regret that the Department had waited eight months from the establishment of a voluntary family maintenance case to the filing of petitions. The court suggested that "there was not really a full understanding of the extent of the dysfunction and especially emotional harm to the children." The court observed that the situation had come to a head; the older children were showing the emotional harm of a lifetime of being in the family situation, and the younger children were at risk of the same unless things changed substantially. It seemed to the court that things had "to be [Mother's] way or she's unhappy about what's going on . . . . I think that she very much has to engage in individual counseling, that it's not medication alone. . . . I think that it isn't a lack of services or attempted services. It's Mother's unwillingness to do anything that she doesn't want to do in this matter. [¶] . . . I think that until Mom has a change in her mind-set, that her attitude towards the older two children, as well as then how then [sic] she won't fully engage the younger children properly, is detrimental to them."
The court found that visitation between Mother and Minors "would create a substantial risk of detriment at this time, hopefully not for very long, and hopefully she engages fully in counseling so that there can be therapeutic contact at a very early time." The court declared Minors dependents of the court; vested their care, custody, and control in the Department; and ordered reunification services for Mother. Visitation between Mother and Minors was suspended until Mother stabilized her mental health and related behaviors. The substitute care provider for M.H. and E.H. was appointed as educational rights holder for them. An interim hearing to consider changing the visitation order was set for mid-January 2021.
Mother timely appealed.
DISCUSSION
Mother argues that the juvenile court erred by violating her due process rights on two separate occasions: first when the court accepted her submission on jurisdiction, and then several weeks later when the court appointed a guardian ad litem to represent her. She further argues that the prejudice to her from those errors requires reversal of the jurisdictional and dispositional orders, as well as the order appointing the guardian ad litem. Mother's due process challenges present issues of law that we review de novo. (In re A.B. (2014) 230 Cal.App.4th 1420, 1434.)
A. Our Jurisdiction in This Matter
Before we address the merits of Mother's positions, we briefly address and reject the Department's argument that we lack jurisdiction to hear her appeal of the juvenile court's jurisdictional order and its order appointing a guardian ad litem.
In a proceeding under section 300, "findings and orders made prior to the dispositional hearing, including those made at the jurisdictional hearing, may be reviewed on appeal from the dispositional order, which is the first appealable judgment in a dependency proceeding." (Contra Costa County Children & Family Services Bureau v. Superior Court (2004) 117 Cal.App.4th 111, 116 (Contra Costa).) Here, Mother timely filed a notice of appeal from the juvenile court's dispositional orders, and therefore we may address her challenges to the jurisdictional orders and to the order appointing a guardian ad litem.
The Department argues that we may not review the jurisdictional orders or the appointment of the guardian ad litem because they are not mentioned in the notices of appeal, which state only that Mother seeks to appeal "all Disposition Orders removing the children from her care," and are silent with respect to any other orders. The Department's argument, which lacks merit, rests on a single case that is nothing like the one before us. The Department's authority, In re J.F. (2019) 39 Cal.App.5th 70 (J.F.), arose from a dependency proceeding in which the father sought to appeal from an order denying a petition he had filed under section 388. (Id. at p. 73.) That order was separately appealable, but the father's notice of appeal made no reference to it: it stated only that the father intended to appeal from the order terminating his parental rights, a different separately appealable order that was entered weeks after the order denying the petition. (Ibid.) The Court of Appeal declined to construe the notice of appeal to include the order denying the petition, relying in part on the principle that the rule favoring the liberal interpretation of notices of appeal does not apply"' "where there is a clear intention to appeal from only . . . one of two separate appealable judgments or orders." '" (Id. at p. 76, quoting Baker v. Castaldi (2015) 235 Cal.App.4th 218, 226.)
Unlike J.F., however, the notices of appeal here did not omit any reference to a separately appealable order. The notices here identified the dispositional orders, which were the only directly appealable orders that the juvenile court had issued. (See Roger v. County of Riverside (2020) 44 Cal.App.5th 510, 532 [no requirement to specify prior nonappealable order or ruling in notice of appeal from subsequent appealable judgment]; In re Athena P. (2002) 103 Cal.App.4th 617, 624 [findings and orders in dependency proceeding made before disposition order are interlocutory and not appealable].) Accordingly, we turn to the merits of Mother's appeal.
B. Mothers' Arguments on Appeal
1. Challenge to Jurisdictional Order
a. Applicable Law
As a matter of due process, in a proceeding under section 300 a parent has the right to a contested jurisdictional hearing on the issues raised by the petition, the right to confront and cross-examine any witnesses, and to compel witnesses' attendance. (In re S.N. (2016) 2 Cal.App.5th 665, 671-672 (S.N.) The court must advise the parent of these rights. (Id. at p. 671, citing rule 5.682(b).) "If, after being so advised, the parent wishes to admit the allegations or enter a plea of no contest (see Rule 5.682(e)), the court must find and state on the record that it is satisfied that the parent understands the nature of the allegations and the direct consequences of the admission, and understands and knowingly and intelligently waives the rights in rule 5.682(b). (Rule 5.682(c), (f).)" (Ibid.) The rules require the juvenile court to explain these rights to the parent and obtain the parent's personal waiver of them; it is error to accept a waiver of the rights based only on counsel's representations. (In re Monique T. (1992) 2 Cal.App.4th 1372, 1377 (Monique T.).) When such an error occurs, reversal is required if prejudice is shown. (Id. at p. 1378.) We may affirm if the error is harmless beyond a reasonable doubt. (Id. at pp. 1377-1378.)
b. Analysis
The record before us shows that the juvenile court did not advise Mother of her rights at the jurisdiction hearing. There is nothing in the record to show that the trial court obtained Mother's personal waiver of her rights, or that it made the required findings concerning Mother's understanding and knowing waiver. This was error. And despite assurances from Mother's counsel that a signed form JV-190, "Waiver of Rights," would be submitted to the court, and the court's direction that counsel submit the form, there is no signed form JV-190 in the record before us.
Relying on Monique T., supra, 2 Cal.App.4th at page 1377, Mother acknowledges that she has the burden to show prejudice from the court's error. Mother contends that "given the totality of the circumstances . . . the improper waiver was not harmless beyond a reasonable doubt," but does not argue the point. Mother argues briefly that she was prejudiced by the appointment of a guardian ad litem, an issue we address below, but does not purport to show prejudice from the errors at the jurisdiction hearing.
We conclude that just as the appellant in Monique T. failed to show prejudice, Mother fails to show prejudice here. (In re Monique T., supra, 2 Cal.App.4th at p. 1378.) As in Monique T., Mother was represented by an attorney who explained Mother's rights to her and who indicated that Mother wanted to waive them. (Ibid.) On appeal, Mother does not deny that her trial attorney explained her rights to her, or that she wanted to waive those rights. (Ibid.) She does not claim that she was unaware of her rights, or that she was under any pressure to waive them. (Ibid.) She does not indicate that there was any evidence that she wanted to, but could not, present at the jurisdictional hearing. (Id. at p. 1379.)
In our view, Mother's failure to show prejudice is even more striking than the failure in Monique T., because Monique T. did not involve a negotiated petition. (Monique T., supra, 2 Cal.App.4th at p. 1375.) Further, unlike the appellant in Monique T., Mother does not challenge the substance of the juvenile court's jurisdictional findings; notably, Mother does not contend that any of the allegations set forth in the negotiated petitions were not supported by substantial evidence. (Id. at p. 1378.)
In these circumstances, we affirm the jurisdictional findings and orders.
2. Challenge to Appointment of Guardian ad Litem and Disposition
a. Applicable Law
In dependency proceedings, "a parent who is mentally incompetent must appear by a guardian ad litem appointed by the court." (In re James F. (2008) 42 Cal.4th 901, 910 (James F.).) A parent may be found incompetent if he or she is" 'either incapable of understanding the nature and purpose of the proceeding or unable to assist counsel in a rational manner.'" (Samuel A., supra, 69 Cal.App.5th at p. 78.)
Before a guardian ad litem is appointed 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 guardian ad litem 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 guardian ad litem is not required, and the juvenile court should make an inquiry sufficient to satisfy itself that the parent is, or is not, competent. [Citation.] If the court appoints a guardian ad litem without the parent's consent, the record must contain substantial evidence of the parent's incompetence. [Citation.]" (James F., supra, 42 Cal.4th at pp. 910-911.)
The appointment of a guardian ad litem in violation of a parent's due process rights is subject to harmless error review, but our Supreme Court has not specified the appropriate standard for analyzing prejudice. (Samuel A., supra, 69 Cal.App.5th at p. 82, fn. 10 [discussing James F., supra, 42 Cal.4th 901].) We may affirm if the error is harmless beyond a reasonable doubt. (Ibid.)
b. Analysis
Mother contends that the juvenile court erred when it appointed a guardian ad litem to represent her in violation of her due process rights, and argues that the error was prejudicial and requires the reversal of the dispositional orders. The Department takes no position as to the appointment, but argues that there is no evidence of prejudice that would require reversing the dispositional orders. We agree with Mother that the court erred in its procedure, but in the circumstances here, we conclude that the error was harmless beyond a reasonable doubt.
The record shows that the juvenile court did not explain the purpose of a guardian ad litem to Mother. And although the court gave Mother the opportunity to address the court in connection with the Marsden motion, her presentation occurred before Mother's counsel argued in opposition to the motion that she had concerns about Mother's competence to understand the proceedings and provide assistance to counsel. Mother was not given the opportunity to respond to her counsel's argument. This was error. (See In re Enrique G. (2006) 140 Cal.App.4th 676, 684 [procedure "wholly inadequate" in the absence of explanation of function of guardian ad litem and opportunity to parent to respond to request for appointment].)
But Mother fails to show any harm from the appointment. Mother does not argue on appeal that she would not have consented to the appointment, or offer any indication of how she might have argued against the appointment. She does not argue that the record fails to show that the juvenile court had substantial evidence at the hearing to support its implied finding that Mother was unable to assist her counsel in a rational manner.Despite Mother's ability to present her grievances at the Marsden hearing, the disposition reports, which the juvenile court had reviewed, and the presentation by her attorney provided substantial evidence from which the court could on December 2 conclude that it was "appropriate and in the best interest of [Mother] at this time" to appoint a guardian ad litem.
We note that Mother has the right to move to vacate the appointment of the guardian ad litem at any time. (Contra Costa, supra, 117 Cal.App.4th at p. 119.)
"[T]he error in appointing a guardian ad litem for a parent without a supportable finding of incompetence is prejudicial under any standard." (Samuel A., supra, 69 Cal.App.5th at p. 82, fn. 10.)
To support her position that she was prejudiced by the appointment of the guardian ad litem, Mother notes that after the juvenile court announced the appointment, the court issued a temporary order limiting Mother's educational rights, in response to a request from Minor's counsel, who sought the limitation because in her view the appointment of a guardian ad litem had implications for Mother's ability to make educational decisions about Minors, even though Minor's counsel acknowledged there were no anticipated educational decisions to be made before disposition. But Mother's contention that she was "stripped of her right to make educational decisions for her children without even a fleeting consideration for her dignity," mischaracterizes the hearing, and ignores the argument made by her counsel (after the appointment of the guardian ad litem), but rejected by the juvenile court, that no decision regarding educational rights should be made until after the psychological evaluation had been reviewed. In any event, in the absence of any indication that educational decisions were made during the three weeks between December 2 and December 21 (the disposition hearing), there is no showing of harm from the temporary limitation of Mother's educational rights.
Mother then suggests that prejudice arises from the juvenile court's subsequent decision at disposition to give the substitute caregiver the right to make educational decisions as to M.H. and E.H., but nothing in the record suggests that the appointment of the guardian ad litem had anything to do with that decision, particularly because in the initial disposition report prepared by the Department in mid-November, weeks before the issue of a guardian ad litem was raised, the Department had already recommended that the caregiver be given educational rights with respect to the two older children, M.H. and E.H.
Nor are we persuaded by Mother's argument that the appointment of a guardian ad litem may have led to a change in her trial counsel's strategy for the contested disposition hearing. The only evidence she offers to support her argument is that the presentation of evidence and argument at the contested disposition hearing took only about two hours, rather than the six hours that Mother's counsel had estimated it would take at a hearing in November.
Further, nothing in the record suggests that the appointment of the guardian ad litem prevented Mother from participating in the litigation or communicating with her counsel, despite Mother's contention that the appointment "stripp[ed] [her] of all her agency in the case." During the disposition hearing, which was held by videoconference, Mother used the chat function to communicate with her counsel, though she inadvertently sent her message to other participants in the hearing as well. And when Mother sought to make a comment during the court's pronouncement of its dispositional ruling, the court explained to Mother, "[I]t's not appropriate at this time to have any further discussions. So . . . you'll need to have discussions with your attorney when we're done."
Mother argues that we should follow the reasoning in In re Sara D. (2001) 87 Cal.App.4th 661 (Sara D.) and In re Jessica G. (2001) 93 Cal.App.4th 1180, where the reviewing courts concluded that the violation of a parent's due process rights in the appointment of a guardian ad litem could not be deemed harmless and the dispositional order must be reversed because we cannot speculate what might have happened in the litigation. But the case before us is not like Sara D., supra, 87 Cal.App.4th 661, where the parent's counsel announced at a contested jurisdictional hearing that he intended to call three more witnesses, but then, at the continued hearing after the procedurally improper appointment of a guardian ad litem, submitted to jurisdiction without offering additional testimony. (Id. at pp. 672-673.) In Sara D., therefore, there was some basis in the record for believing that the appointment of the guardian ad litem had changed the course of the litigation. That was apparently not the case in Jessica G., supra, 93 Cal.App.4th at page 1189, but we nevertheless follow the approaches taken by the reviewing courts in Enrique G., supra, 140 Cal.App.4th 676, and In re Esmeralda S. (2008) 165 Cal.App.4th 84. In Enrique G., the violation of the parent's due process rights in the appointment of a guardian ad litem was harmless because the parent did not cite any prejudice that resulted from the appointment. (140 Cal.App.4th at p. 686.) Similarly, in Esmeralda S., violation of due process in the appointment of a guardian ad litem was harmless where the parent "argue[d] only that the outcome may have been affected." (165 Cal.App.4th at pp. 95, 97.) Like the court in Esmeralda S., we agree a finding of prejudice from a juvenile court's order in a dependency case "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 p. 96.)
Mother does not identify any errors in the procedures followed during the disposition hearing, nor does she contest the legal or factual basis of any of the juvenile court's findings. And nothing in the record suggests that any of the dispositional findings or orders were in any way affected by the appointment of the guardian ad litem. To the contrary, it is clear that the outcome of the hearing would have been the same regardless of the appointment. There was substantial evidence in the record to support the juvenile court's finding of repeated domestic violence between Mother and J.M. in the presence of Minors, physical violence between Mother and M.H., emotional abuse of M.H. and E.H., and failure to protect all the Minors from the stressful situation of domestic violence. And there was substantial evidence to support the finding that visits between Mother and Minors were detrimental. There was substantial evidence of Mother's failure to address her mental health issues and her failure to acknowledge the harm she caused her children. In these circumstances, there was no error in declaring Minors dependents of the court and removing them from Mother's care, the procedural error in the appointment of the guardian ad litem was harmless beyond a reasonable doubt, and we will affirm the appointment order and the dispositional order.
DISPOSITION
The challenged orders are affirmed.
WE CONCUR: Kline, P.J., Richman, J.